RE PEER MOHAMED VARUSAI MEERAN

CAMP 155/2022

[2022] HKCA 1696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 155 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1913 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.  On 12 September 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decisions of the Director of Immigration (the ‘Director’) dated 22 June 2016 and 10 July 2017 rejecting his non-refoulement claim, and against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 16 August 2018 dismissing his appeal against the Directors’ decisions.  The application was brought within time.

2.  By his decision dated 30 July 2021 ([2021] HKCFI 2164) (the ‘Leave Decision’), Deputy High Court Judge To (the ‘Judge’) refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the decision.  The applicant took out an application on 21 September 2021 before the Judge requesting an extension of time to appeal.  The Judge on 18 March 2022 rejected the applicant’s application ([2022] HKCFI 724) (the ‘EOT Decision’).

4.  Under Order 59, rule 14(3) of the Rules of the High Court, Cap. 4A, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. by 25 March 2022).  On 16 May 2022, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.   Factual background

6.  Briefly stated, the applicant is an Indian national.  He arrived in Hong Kong on 20 March 2014 and was permitted to remain as a visitor until 29 March 2014.  He over-stayed thereafter.  On 31 March 2014, he surrendered to the Immigration Department.  He applied for non‑refoulement protection by way of written submissions, claiming that he will be harmed or killed by his creditors if returned to India.

III.   The Director’s Decision

7.  By a decision on 22 June 2016, the Director decided against the applicant’s non‑refoulement claim.  The decision covered risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’) (‘BOR 3 Risk’), and risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk’).

8.  The Director found that the level of risk of harm from his creditors in India was low as it was a private monetary dispute.  Further, there was no evidence of state involvement.  Consequently, there was no evidence to support the applicant’s non‑refoulement claim.

9.  By a further decision dated 10 July 2017, the Director again rejected the applicant’s claim in the absence of any response to an earlier invitation for him to submit any additional facts which may be relevant to his non‑refoulement claim on all applicable grounds for non‑refoulement protection including any other absolute or non‑derogable rights under HKBOR including right to life under Article 2 (‘BOR 2 Risk’).

IV.   The Board’s Decision

10.  The applicant appealed against the Director’s Decisions to the Board.  The Board heard his appeal on 31 January 2018.  The Board dismissed the applicant’s appeal on 16 August 2018, and the Director’s decisions were affirmed.  The Board found his claim for non‑refoulement protection failed on all applicable grounds.  The Board’s findings were summarised by the Judge in his Leave Decision:

‘ 16. The Board found the Applicant evasive and not a credible witness. There are glaring contradictions among his evidence in his NCF and his two interviews before the immigration officer. In his NCF, he said he never reported the matters to the police because the police would not help him, would take side with the Ravi who was politically influential and would arrest him on the spot. But in his two interviews and at the oral hearing he said he had made reports to the police and before the hearing, he even produced a copy of his police report.

17.   The Board found the Applicant was not a credible witness. Despite that, it found even on the basis of his evidence, he has not made out a case where he needed non-refoulement protection. He told the Board that he no longer feared Devan and Ravi because he could have dialogue with them and that his dispute with them could be solved. He said he was worried about one of the creditors’ surviving subordinates who harassed him and his wife. Four of the five have died. He said that the remaining surviving one has now become less strong and he was told that that that surviving subordinate will also be dead soon. Effectively, the Applicant has no one to worry about. The Board found that neither his creditors nor the five subordinates (now down to only one surviving subordinate) together or separately, never had any intention to cause the Applicant and/or his family any serious bodily harm.

18.   Taking into account the nature and intensity of the past ill-treatment inflicted by the creditors and the five subordinates, the extent of injuries the Applicant had suffered, the medical treatment required and that the Applicant later led a normal way of life, the Board considered that the physical harm did not attain a minimum level of severity. The Board considered the Applicant’s evidence does not establish any substantial ground to believe there will be a foreseeable and real risk of harm to be caused by the creditors and the five subordinates.

19.   While the COI shows that the efficiency and effectiveness of the Indian police varies from place to place and there is bribery, overall there is an effective criminal system. The Board was satisfied that state protection is available to lower or negate the level of risk. It also found that there was no circumstance that makes it unduly harsh for the Applicant to relocate elsewhere in India.

20.   On the above finding, the Applicant has failed to discharge the burden of proving the factual basis to support his claim for non-refoulement protection on any of the four applicable grounds. In addition, the Board found the feared harm and risk do not meet the criteria required for protection under any of the four applicable grounds under the USM.

21.   In respect of Persecution Risk ground, the Applicant must prove a well-founded fear of being persecuted for reasons specified under the 1951 Convention Relating to the Status of Refugees , ie for reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”). On the Applicant’s case, the reason for his persecution arose out of his inability to repay his loan in a moneylending transaction and not for any of the Convention reasons. His claim falls outside this ground.

22.   In respect of BOR 2 Risk ground, the Board held that based on the above founding of fact, the Applicant has failed to establish there is a real risk of danger against his life from the creditors and the subordinates, should he be refouled.

23.   In respect BOR 3 Risk ground, the Applicant must prove that the ill-treatment he will receive would attain a minimum level severity and a genuine and substantial risk of being subjected to such ill-treatment. The threshold is very high and it generally involves actual bodily injury or intense physical or mental suffering. For reasons as explained above the Applicant has failed to discharge the burden of proving these requirements. In addition, the Board found he could not show that the Indian government failed to provide him with reasonable protection.

24.   In respect of Torture Risk ground, the Applicant bears the burden of proving she will suffer “torture” within the meaning of section 37U of the Immigration Ordinance . One of the requirements of “torture” under the section is that it is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. As the creditors and his subordinates are non-state agents and the government would be able to offer protection to the Applicant, his claim falls outside the Ordinance.’

V.   The Leave Decision

11.  The applicant then sought leave to apply for judicial review of both the decisions of the Director and the Board.  The Judge in reviewing the application for leave noted that the applicant did not put forward any specific grounds in his notice of application for judicial review, and in his supporting affirmation filed on the same date he merely exhibited the appeal bundle used at the hearing before the Board.  The Judge, refusing the application, held at [26]-[27] (footnotes omitted) :

‘ 26. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. 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: see Nupur Mst v Director of Immigration. Thus, in the absence of specific grounds for application, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness, irrationality, and procedural unfairness.

 27. 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; 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 state protection and 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. There are no such vitiating elements in the Decision. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.’

VI.  The EOT decision

12.  The Judge held that the applicant was 39 days late when he filed his summons on 21 September 2021 and it was a serious delay.

13.  On the merits of the intended appeal, the Judge held at [11]-[12] :

‘ 11. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In a judicial review, the court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration. In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, the court can only re-focus on these vitiating elements in the decision when considering an application to appeal that decision out of time.

 12. I have rigorously re-examined the Call-1 Form, the Decision, the papers and the evidence with anxious scrutiny. I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Applicant’s sole intended ground of appeal being a challenge of the Board’s finding of fact is wholly unarguable. It has no prospect of success at all.’

14.  The Judge refused the application.

15.  We note that although the Judge held that the applicant was 39 days late in filing his summons of 21 September 2021, actually, if the Judge had taken into account the intervening summer vacation, the deadline for the applicant to file his notice of appeal fell on 13 September 2021.  Hence the delay was eight days.

VII.   The present application

16.  By a summons and supporting affirmation both filed on 16 May 2022, the applicant reapplied for extension of time to appeal against the Leave Decision.  Again, he did not set out any grounds of intended appeal and complained that the late application was due to his lack of knowledge of court rules.  In his affirmation, the applicant merely stated :

‘ … I am late for apply due to lack of knowledge and insufficient sources. Please accept my filling (sic) application so that I can process my case further. I hope I will get your favour.’

17.  In his written submissions dated 23 May 2022, the applicant made the repeated general assertion that it is not safe to return to his own country and that the ‘decision wasn’t transparent’.  

VIII.  Analysis

18.  In considering whether to extend time for appeal, the Court will have regard to :

1)  Length of the delay;

2)  Reasons for the delay;

3)  Prospect of the intended appeal; and

4)  Prejudice to the putative respondent if extension of time was granted.

19.  The present application is well out of time and the applicant did not put forward any explanation for his delay.  The delay is serious.  However, of relevant consideration is the initial delay by the applicant in filing his intended notice of appeal.  As mentioned earlier there was a delay of eight days which was not excessively lengthy.  As such we will consider the prospect of the intended appeal.  The Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant 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.  An appeal 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.  General and bare assertions without any specific particulars are not proper grounds of appeal.

20.  The Judge had considered all relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

21.  The applicant has not provided any draft or proposed grounds of appeal.  In his written submissions, no valid ground of appeal can be found from his general assertions, which contain no particulars, and none of his assertions engage with the Judge’s reasons for dismissing his application.  None of them constitute proper grounds of appeal.

22.  As the applicant has not clearly and properly identified any error in the decision or any proper grounds of appeal, the intended appeal does not have any prospect of success.

IX.  Disposition

23.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, the applicant’s summons is dismissed.