RE VIRENDER KUMAR

CAMP 356/2022, [2023] HKCA 716

On Appeal From [2022] HKCFI 661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 356 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 518 OF 2019)

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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):

1.  By a summons filed on 19 September 2022, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge To (“the Deputy Judge”)  dated 12 August 2022.  By that order the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 2449)  (“the EOT Decision”)  against his earlier order dated 25 March 2022, refusing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 661)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 28 December 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 26 March 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of India.  On 8 September 2016, he was arrested by the police for illegally remaining in Hong Kong and was referred to the Immigration Department the next day.  On 10 September 2016, he lodged a non-refoulement claim on the basis that his life would be endangered by his paternal uncle due to a land dispute if he returned to India.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [8] - [11] of the Leave Decision.

5.  By a Notice of Decision dated 26 March 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  On 29 October 2018, he attended an oral hearing before the Board.  On 28 December 2018, the Board dismissed his appeal.  Having considered his evidence, the Board did not find the applicant to be telling the truth and that his case was both vague and unbelievable.  Although the Board accepted his personal and family background that that he might have some land dispute with his uncle, that did not give rise to the attack or threats as claimed. The Board also found that state protection and internal relocation would be available to the applicant.  All in all, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 22 February 2019, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Director’s Decision.  The applicant did not advance any ground of review and only stated in his affirmation that he was not satisfied with the Director of Immigration.[5] As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [15] - [18] of the Leave Decision:

“15. The Applicant’s sole ground of application is that he is not satisfied with the decision of the Director. The Court assumed for his benefit that he was likewise not satisfied with the Decision for the same reason. But he did not put forward any specific grounds in his notice of application. As mentioned above, in an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality. In the absence of specific or particularised grounds, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

16. The Court was satisfied that the Board had correctly set out the four applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including the standard of proof and burden of proof, and quoted relevant precedents in support. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claims are founded on his fear arising from his uncle’s threat to kill him. The Decision of the Board was based on its finding of the Applicant’s credibility. The Board carefully weighed the evidence and assessed his credibility, but found against him. The Board found he was not telling the truth and did not accept his evidence about the threats to his life. As the Applicant bears the burden of prove of his claims, such a finding is fatal.

17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of internal relocation. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable.

Conclusion

18.  For the above reasons, even if the application were amended to an application relating to the Decision, there is no realistic prospect of success in the proposed judicial review.  It would serve no purpose to make the amendment.  The application for leave to apply for judicial review of the decision of the Director is an abuse of legal process as there is a statutory regime of appeal to the Board and the Applicant has invoked the appellate proceedings.  His application is therefore refused.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 11 May 2022, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over one month late with his intended appeal.  In his summons and supporting affirmation, he contended that he did not receive the order within reasonable period of time.

11.  By the EOT Decision, the Deputy Judge did not accept that the applicant had a reasonable explanation for the very substantial delay.  As the applicant had no arguable grounds of appeal and his intended appeal has no prospect of success, the Deputy Judge refused his application for extension of time to appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 19 September 2022, the applicant applied for leave to appeal against the EOT Decision.  In his summons and supporting affirmation, the applicant only stated that he disagreed and did not accept the Court’s decision and that the Court’s decision made him unhappy and irrational in his life.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 19 September 2022, the applicant lodged his written submissions on 29 September 2022.  In those submissions, the applicant claimed that the Deputy Judge erred in not applying “the principle of procedural unfairness” and “the principle of irrationality” the Director’s and the Board’s Decision and that the Deputy Judge had been unreasonable and failed to analyse his claims properly in his home country.  He then further asserted that his problems remained severe in his home country and that he had submitted all the proof in support of his claim but the Deputy Judge did not take greater care and “disappointed” him.  He then further asserted that the Board had failed to evaluate whether a consistent pattern of gross and mass violation of human rights in India.  He further claimed that the police would not help him in his home country and that the members of the current ruling party already killed many of the opposition leaders and supporters.  He feared that he would be tortured by his enemies upon return to his company.

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  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 success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  We consider that the applicant’s delay of over one month as substantial and we agree with the Deputy Judge that the applicant had failed to give any good reason for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  At the outset, the arguments raised in his summons, supporting affirmation and written submissions are new and not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact and evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, the applicant’s contentions are all general and bare assertions without any specific particulars or evidence in support.  They do not constitute proper grounds of appeal and we refuse to entertain those arguments.  The appeal must fail on this basis alone.

19.  In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board and we see no basis to interfere with the Leave Decision.

20.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 19 September 2022 is dismissed.