RE MOHAMMED JAWED

CAMP 317/2019

[2020] HKCA 651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 317 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 196 of 2017)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

Introduction

1.  On 30 January 2018, by way of a decision set out in Form CALL-1 ([2018] HKCFI 199), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to 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 10 April 2017 (“the Board’s Decision”).

2.  In the Board’s Decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated respectively 16 December 2015 (“the Director’s First Decision”) and 14 February 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  On 23 September 2019, the applicant sought extension of time to appeal the decision of the Deputy Judge (“the Deputy Judge’s Decision”).  According to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the 14-day time period for him to file the summons expired on 13 February 2018.  The applicant was around 17 months out of time.

5.  On 17 December 2019, the Deputy Judge refused to grant extension of time to the applicant (“the Deputy Judge’s Extension of Time Decision”).

6.  By a summons dated 20 December 2019, the applicant renewed his application before this Court.

Background

7.  The applicant is a national of India.  He entered Hong Kong on 7 May 2010 as a visitor and was allowed to remain until 21 May 2010. He overstayed and was arrested by the police on 10 June 2010.  He lodged a claim for non-refoulement protection on 14 June 2010.

8.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or killed by Mr Chotka because he refused to give Chotka half of his earnings from a job.  The factual background was summarized at paragraphs 5 - 6 of the Director’s First Decision and paragraphs 2 - 3.4 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that he was a supporter of the Communist Party of India Party (“CPIM”) whilst Chotka was a supporter of Trinamool Congress Party (“TCP”) and a leader of a gang involved in illegal activities.  In 2005, during an election, members of TCP (led by Chotka) and those of CPIM involved in a fight which the applicant suffered some injuries.  In 2007, the applicant was introduced to work in a company which he was later promoted to be a supervisor.  Subsequently at the end of 2008, in two occasions, the applicant and Chotka had fights and arguments in a cricket ground where Chotka demanded with threats for half of the applicant’s earnings from that job because Chotka claimed that the job was originally offered to him but not the applicant. Another incident happened in April 2010 when he was assaulted by Chotka and four unknown men with baseball bats.  The applicant did not report these threats to the authorities because TCP was in power at that time.  Out of fear, he eventually fled to Hong Kong.

Director’s Decisions and the Board’s Decision

10.  By way of the Director’s Decisions, the Director assessed and dismissed the applicant’s claim.  The Director’s First Decision assessed the BOR 3 risk[1], persecution risk[2] and torture risk[3] whilst the Director’s Second Decision covered the BOR 2 risk[4].

11.  The applicant lodged an appeal to the Board against the Director’s Decisions.  An oral hearing was held on 6 March 2017.  However, the applicant chose not to answer the Board’s questions.  After considering the documents, the Board found that the applicant’s claim failed to satisfy the requisite elements of a non-refoulement claim.  In particular, the Board concluded that: (a) his claim was at most a private dispute without state involvement (paragraphs 7 - 9 of the Board’s Decision); (b) the applicant did not suffer any physical or mental pain that amounted to “torture” (paragraphs 10 - 13 of the Board’s Decision); and (c) in any event, internal relocation was available to the applicant (paragraphs 14 - 18 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

12.  On 10 May 2017, by way of a Form 86, the applicant sought to challenge the Board’s Decision.  In the supporting affirmation filed on the same date, the applicant advanced the following grounds of review, which were succinctly summarized by the Deputy Judge at paragraph 22 of the Deputy Judge’s Decision:

“22. I now come to consider the applicant’s application for leave to judicial review the TCAB’s decision, of which I must do with rigorous examination and anxious scrutiny. In his Form 86 and supporting affirmation dated 10 May 2017, the applicant seeks to essentially rely on two grounds, namely that it was unfair to dismiss his claim under BOR 2 Risk when he was never given the opportunity to submit the relevant information in support of his claim, and that it was procedurally unfair to dismiss his claim due to the Adjudicator’s failure to carry out sufficient research and inquiry into the COI conditions or to take into proper account or weight on information relevant to his claim.”

13.  The applicant did not request an oral hearing.  After considering the documents, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  He set out his reasons at paragraphs 23 - 31 of the Deputy Judge’s Decision:

“23. In support of his first ground the applicant claimed in his affirmation to have never received the letter dated 27 January 2017 from the Director referred to above inviting him to submit additional facts, if any, which he might consider relevant to his claim on all applicable grounds for non-refoulement protection including right to life under BOR 2 and BOR 2 Risk, which only came to his attention after he received the Director’s Notice of Further Decision of 14 February 2017 informing him so (paragraph 1) and that in the absence of additional information from him it was considered that he had failed to establish any risk under BOR 2 upon his return to India (paragraph 6).

24. However in the same affirmation the applicant went on to state that he did receive the letter but when he tried to submit further information to the Immigration Department the week before his affirmation he was refused and hence in the absence of such information he argues that it was unfair to reject his claim. He however never explained or clarified how and when he received the letter.

25. A careful reading of the affirmation can perhaps explain this apparent contradiction, and by putting his case at the highest, which is that the applicant may indeed not have received the letter of 27 January 2017 and hence did not learn about the invitation to submit further information until he read the Director’s Notice of Further Decision of 14 February 2017 which he would have received shortly after and in any event before his oral hearing on 6 March 2017 before the TCAB.

26. If indeed that was the case, and that he had intended to submit additional information that would support his claim, it cannot in my view explain why he did not do so at that hearing on 6 March 2017, or if he had needed more time or assistance to produce the additional information, it cannot explain either why he did not inform the Adjudicator and seek an adjournment of the hearing to enable him to do so, but instead chose to remain silent and not answer any question during the hearing as recorded by the Adjudicator.

27. Instead it was only until he filed his affirmation in support of his application for leave to apply for judicial review on 10 May 2017 when he introduced additional information alleging that after he fled from India, both Chotka and the opposite political party had continued to look for him and threatened his family, in particularly the following assertions:

‘Last year they went to my place and they had tortured my family and they get mad while he failed to get information about my whereabouts. My family refused to tell them my location. They came along with many of his fellow men and they had burnt my home and tortured my family, in result of which one member of my family get injured and few days later my cousin sister was died in result of this torture. My mother also gets serious injuries and police did not investigate honestly because of his influence with the other sect and they had bribed money to police. Police had misled the investigation to an accident because of their influence to the political party and had bribed money and I had lost my cousin sister who came to visit my home and we could not get any justices. These incidents show that I would still have face life threat risk upon return to my home country…’

28. If true these would indeed pose very serious risks to the applicant upon his return to India, and which no doubt he would have disclosed, at length and in details knowing the importance of their implications on his claim, to the Adjudicator at the hearing on 6 March 2017 as these incidents were said to have occurred as recently as only the year before the hearing. Yet the applicant somehow elected not to answer questions or to give any evidence at that hearing, for which I agree that the Adjudicator was entitled to raise question about his credibility. In the premises there was in my judgment no unfairness when his claim was refused in the absence of any additional information from the applicant which he had had ample opportunity to do but chose not to, and hence there is simply no arguable ground to review the Adjudicator’s decision on information or materials which were never before him at the hearing.

29. As for the second and remaining ground, the applicant accuses the Adjudicator and/or the Director of failing to take into account or put sufficient weight on what he claims to be highly relevant information found in the limited COI research cited in his decision and which were overwhelmingly in his favor or supportive of his claim, but instead put full weight on those of little or no relevance, and of failing to evaluate or make finding of fact as to whether there exists in India a consistent pattern of gross or flagrant abuse or violence against the minorities.

30. The quick response to this is that these are again just bare assertions by the applicant without any particulars in support, and as pointed out by the Adjudicator he instead chose to remain silent at the oral hearing and made no comments or argument about the COI. However, and bearing in mind of a high standard of fairness required in assessing the applicant’s claim, a close and objective examination of not only the relevant COI summarized by the Adjudicator in his decision but also the earlier one referred to by the Director reveals that there is simply no merit in those bare assertions of the applicant that he would be unable to seek protection from the Indian government from the threats from Chotka or any of his TMC supporters if indeed those threats still exist or that he would be harmed or killed upon his return to India, and given that the applicant had chosen not to make any comment or argument on the COI, the Adjudicator was entitled to express doubt that Chotka would bother to locate him all over India, and to find that as an able-bodied young man with ample working experience the applicant would be able to live safely anywhere else in India than his home village.

31. In conclusion I do not find any ground that shows any error in law or procedural unfairness on the part of the Director or the Adjudicator, nor any failure to apply a high standard of fairness in their assessment of the applicant’s claim. In the premises and for the reasons given, I am not satisfied that this application is reasonably arguable, and accordingly I refuse leave for judicial review.”

Application for extension of time

14.  On 23 September 2019, after 17 months, the applicant took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.  The applicant in his supporting affirmation explained that he was detained by the Immigration Department and did not receive any court correspondence.  He also said that as a litigant in person he was unaware of the 14-day rule.  He further argued that the Deputy Judge’s Decision was unfair because it did not allow him to clarify his situation in his home country.

15.  By way of the Deputy Judge’s Extension of Time Decision, the Deputy Judge dismissed the applicant’s summons.  He held that the delay was substantial and significant and that the applicant had failed to provide any documentary evidence to support his explanation.  There was thus no good reason for the serious delay.  In any event, it would be futile to extend time for the applicant as there was no prospect of success in the intended appeal.

Renewed application for extension of time to this Court

16.  On 20 December 2019, the applicant renewed his application for extension of time to appeal the Deputy Judge’s Decision and asked for leave to adduce a new ground before this Court.  In his supporting affirmation filed on the same day, he merely repeated the grounds he argued before the Deputy Judge that he did not receive the court correspondence and that he was unaware of the 14-day time limit.  He further indicated that upon taking legal advice he understood that there was a new good ground of appeal.  Nevertheless, he did not provide any particulars on the said new ground.

17.  In the written submissions lodged on 3 January 2020, he quoted some passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance (Cap 115), and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and the accompanying evidence, as well as other relevant matters of fact within the Board’s knowledge.  However, the applicant did not further elaborate how the section could assist his case.

Legal principles

18.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

19.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal, see: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re Ansar Muhammad [2018] HKCA 227; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

20.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purpose of this application, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court.

Discussion

21.  In our view, the applicant’s application for extension of time is entirely without merit.

22.  A delay of more than 17 months is substantial in the context of the 14-day statutory time limit.  The applicant had failed to provide any documentary evidence, such as when and how long he had been detained in the Immigration Department, to support his explanation that he failed to receive the court correspondence. Further, ignorance of law is also not an excuse for delay: see Re Hassan Ali [2020] HKCA 477, per Yeung VP at [17].  In the premises, there is no good reason for such substantial delay.

23.  With the substantial and inexcusable delay, the applicant must satisfy the court that the intended appeal has real prospect of success before extension of time is granted: Re Kasirah [2020] HKCA 468, per Yeung VP at [17] - [18]; Caramat Virginia Lobeban & Ors v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2020] HKCA 276, per Kwan VP at [12] - [14]; Re Mohammed Roni Khan [2020] HKCA 66, per Chu JA, at [14].

24.  In our view, the applicant’s intended appeal has no prospect of success, let alone a real one.

25.  First, the applicant merely repeated the arguments he had advanced but failed before the Deputy Judge. These are not viable grounds of appeal.

26.  Second, the applicant’s written submissions also do not assist him.  Other than making general and bare assertions that the decision makers did not adhere to the high standard of fairness, the applicant had failed to identify with sufficient particularities as to why the Deputy Judge was wrong in his reasons.  The applicant’s reference to section 37ZT of the Immigration Ordinance is also irrelevant.  These are also not viable grounds of appeal.

27.  Finally, the applicant’s claim that he was advised that there was a new good ground of appeal is a bare assertion without any substance.

28.  The intended appeal therefore has no merits at all.  In any event, after reviewing the Deputy Judge’s Decision, we are of the view that the Deputy Judge was right in refusing to grant leave for the applicant to apply for judicial review.

29.  Accordingly, we dismiss the applicant’s summons of 20 December 2019.