RE AMBUROSE EDWARD

CAMP 9/2019

[2019] HKCA 649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 9 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 185/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 13 September 2018, Deputy High Court Judge Josiah Lam (“the Judge”) refused to grant an extension of time for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 17 January 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) rejecting the applicant’s non-refoulement claim.

2.  On 16 November 2018, Deputy High Court Judge Bruno Chan refused to extend the time for the applicant to appeal against the said decision of the Judge.

3.  On 21 January 2019 (wrongly dated 2018), the applicant took out a summons before this court.  In the summons, the applicant asked for time to remain in Hong Kong until he sells his property in India and buy another area to live safely. He requested for 6 to 7 months.

Background

4.  The applicant is a national of India.  He last entered Hong Kong from Macao on 22 August 2014 and was permitted to remain until 25 August 2014.  He overstayed and was arrested by the police on 27 August 2014.  He lodged a non-refoulement claim on 29 August 2014.

5.  The applicant’s claim was based on his fear that, if he returned to India, he being a Christian would be harmed by the Hindu villagers of the Thevar caste.  The factual background was succinctly summarized by the Judge in [1] – [11] of the Form CALL-1 ([2018] HKCFI 2053).

6.  By two notices of decision dated 8 June 2016 and 2 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined the claim against him.  The former covered the BOR 3 risk[1], persecution risk[2], and torture risk[3], and latter the BOR 2 risk[4].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 9 May 2017, during which the applicant gave oral evidence to the Board regarding the nature of harm he feared he might suffer if returned to India.  After hearing the applicant, the Board did not find that the applicant was a credible, truthful and reliable witness as he gave two different accounts as to why he feared he would be harmed by the Hindu villagers if returned.  On the one hand, he told the Director that the Hindu villagers would harm him if he returned to India because he was accused of stealing a Hindu statue.  On the other hand, in his oral evidence given at the hearing, he told the Board that his fear was due to the fact that he had converted a high class Theva family member to Christianity.  The Board held that the applicant failed to establish that there was substantial risk of harm if he returned to India. Accordingly, the Board dismissed the applicant’s appeal/petition on 17 January 2018.

The Judge’s decision

8.  On 8 February 2018, the applicant applied to the court for leave to apply for judicial review.  According to the form 86, the intended judicial review was against the Director’s decisions, as well as the Board’s decision.  In the document entitled “Grounds for Judicial Review” attached to the supporting affirmation of 8 February 2018, the applicant advanced 5 grounds for judicial review in respect of the decisions of the Board and the Director.  The applicant’s complaints in respect of the Board’s decision were set out in [25] of the Form CALL-1.

9.  At [17] of the Form CALL-1, the Judge applied the principle laid down by this Court in Re Moshsin Ali [2018] HKCA 549.  It was held that the decisions of the Director were not amenable to judicial review and the Judge would only deal with the grounds in respect of the Board’s decision only.

10.  An oral hearing was held on 22 June 2018.  After hearing the applicant, the Judge decided to refuse leave for him to apply for judicial review.  The Judge’s reasons in refusing leave are set out in [28] - [36] of the Form CALL-1 as follows:

“ 28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5]

30. The Applicant said the Adjudicator failed to consider he was attacked by assailants who accused him of stealing the statute of the god Murugan. The Applicant was wrong. The Adjudicator did consider such claim. In fact, she duly considered such claim in contrast with the Applicant's other allegation that he was persecuted by a person called Murugan because the Applicant had converted Murugan’s brother Jayakrishnan to Christianity.

31. The Adjudicator was entitled not to accept that the stark inconsistency was due to mistakes made by the Applicant or the interpreter. The Adjudicator was entitled to find the Applicant incredible.

32. Since the Adjudicator found the Applicant faced no risks, there was no issue of mental stress.

33. The Adjudicator need not study all COI relating to India. She had sufficient regard of relevant COI for proper understanding of the religious freedom and conflicts in India relevant to the Applicant's case.[6]

34. In light of her finding the Applicant faced no risk that warranted non-refoulement protection, the Adjudicator was not required to consider COI relating to state protection or internal relocation or how BJP abused its power.

35. In fact, even on the Applicant's own account, state protection or extended state acquiescence was not an issue. The Applicant just claimed the India police would not help him. He had never sought assistance from the authorities. There was no evidence that the India authorities had known of the Applicant's alleged situation and then refused to offer protection or acquiesced in it.

36. The Applicant's other complaints are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had duly considered the Applicant’s claim. She had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed that she was acquainted with the facts and the law. She considered the Applicant's case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in the Applicant’s complaints.”

Application for Extension of time

11.  On 18 October 2018, the applicant took out a summons for the extension of time for appealing.  In the summons, the applicant stated that he was still threatened by his enemies and was told by his friend that his enemies would harm him if he returned.  In the supporting affirmation dated the same date, the applicant also mentioned that he would try to obtain some supporting documents for the appeal.

12.  Deputy High Court Judge Bruno Chan heard the application on 26 October 2018.  At the hearing, the applicant explained that, due to the renovation of the flat he was residing, he was not able to obtain the Judge’s  decision until 17 October 2018.  In the decision given on 16 November 2018 ([2018] HKCFI 2433), the court rejected the application on the ground that there was no merit in the intended appeal.

The present application

13.  The applicant issued the present summons on 21 January 2019, which is more than 2 months after the handing down of the decision of DHCJ Bruno Chan.  In the summons, the applicant did not seek to renew the application for leave to appeal out of time.  Instead he asked for time to enable him to remain in Hong Kong for 6 to 7 months so that he may have time to sell his property in his country and to resettle in other part of India.   

14.  In his affidavit of 21 January 2019, the applicant repeated the risk of harm that he would face if he returned to India, and requested time in order for him to arrange for settlement in his country.

15.  Despite the directions given by the Registrar of Civil Appeals, the applicant failed to lodge any written submission in support of the present summons.

Discussion

16.  This application is clearly misconceived.  This Court does not have the power to grant him permission to remain in Hong Kong, whether for a limited duration of 6 to 7 months or otherwise. 

17.  The applicant did not advance any ground to challenge the decision of the court below. We have no reason to doubt the correctness of the judge in refusing to grant leave to apply for judicial review or in dismissing his application for extension of time.

18.  For these reasons, we dismiss the summons filed on 21 January 2019.