RE DEEPAK KUMAR

CAMP 76/2022

[2022] HKCA 828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 76 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 361 OF 2021)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 23 July 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission to support the application.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of India aged 36.  He entered Hong Kong illegally and was arrested by the police on 30 April 2015.  On 2 May 2015, he raised a non-refoulement claim based on his fear of being harmed or killed by his uncle due to a land dispute.  His case is that his uncle murdered his father in about 1997 so as to occupy his father’s land. After the applicant inherited the land and refused to transfer the land, his uncle threatened and assaulted him.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

5.  By a notice of decision dated 1 December 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds. 

6.  The applicant appealed the Director’s rejection of his claim to the Torture Claims Appeal Board (“the Board”).  The applicant was absent at the hearing on 6 November 2020.  He did not respond to the Board’s invitation for explanation of his absence.  The Board accordingly proceeded to determine the appeal having regard to section 15 of Schedule 1A of the Immigration Ordinance, Cap. 115. 

7.  By its decision dated 30 December 2020, the Board dismissed the appeal.  In summary, the Board pointed out that because of the applicant’s absence at the hearing, it did not have an opportunity to clarify various aspects of his claim, including the ownership of the land, the occasions on which the applicant was threatened and assaulted, and why it was in 2014, which was many years after his father’s death, that his uncle first approached him.  On the available materials, the Board considered it was reasonable to conclude that either his uncle had no adverse interest in the applicant, or that his influence was localised, and there was no evidence to support the applicant’s assertion that his uncle was influential within the Bharatiya Janata Party, or that the party would take any interest in the land dispute.  The Board found the applicant did not face a real risk of serious harm, and that, even if he were targeted by his uncle, the availability of internal relocation alternatives would have reduced any risk he might face.  The Board concluded that he failed to establish entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 16 March 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to apply for judicial review.  Other than stating in the affirmation that his life was in danger, the applicant did not provide any ground in support of the application.   

9.  The Judge heard the application at a hearing held on 8 July 2021.  By a Form CALL-1 dated 23 July 2021, the Judge dismissed the application.  His reasons are encapsulated in [9] to [12] as follows:

“9. On 16 March 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he does not agree with the decision but without putting forward any proper grounds for his intended challenge, nor did he do so at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  As the month of August, which falls within the Court’s summer vacation[6], is excluded in the reckoning of the time for the appeal[7], the time for the applicant to appeal the Judge’s decision expired on 6 September 2021.

11.  By a summons filed on 9 August 2021, the applicant applied for an extension of time to appeal the Judge’s decision.  The application was in fact not necessary because, as explained above, the time for appeal had not expired by then.  Unfortunately, the mistake was not picked up.  By the time the application was heard on 9 February 2022, the time for appeal had expired.  By his decision handed down on 23 February 2022[8] the Judge refused to extend the time for appeal. 

12.  On 4 March 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.  

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

14.  In view of the special circumstances of the case (see [11] and [12] above), we are prepared to accept that the delay, which was in any event a minor one, was excusable.          

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. Among them, the following are of particular relevance to the present application:

(1)  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’s decision, 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.

(2)  Assessment of credibility and evaluation of risks of harm are matters for the Director and the Board, who are the primary decision makers.  The Court in judicial review proceedings exercises a supervisory role, and will only intervene with a primary decision maker’s decision if there is error of law, irrationality or procedural irregularity or unfairness.

16.  In the summons and the written submission, the applicant made the following points (respectively “Ground (1)” to “Ground (8)”):

(1)  The Judge was wrong as a matter of law for not having applied the principle of irrationality the decisions made by the Board and the Director.

(2)  High standards of fairness are required in the determination of torture claims, but the Judge dealt with the case lightly.  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and entailing real and significant implications for the applicant’s right not to be subject to torture and his right to non-refoulement protection.

(3)  The Judge was wrong as a matter of law for not having applied the principle of procedural unfairness whereby the Director and the Board were required to give reasons justifying their decisions.

(4)  The Judge did not take great care, failed to properly analyse the applicant’s claim and unreasonably decided against the applicant, despite that his problem was very severe and he had submitted all the proofs.

(5)  The Board failed to give the applicant sufficient chance to arrange relevant evidence in support of his claim and appeal.

(6)  The Board has significantly relied on the source of news which is not officially recognized, or is simply hearsay.   

(7)  The Board failed to evaluate and assess whether there was a consistent pattern of gross and mass violation of human rights and whether state protection existed in India, as well as misdirected himself on the extended meaning of state protection. 

(8)  The applicant will face hardship.  He has a high risk of being tortured and killed by his enemy, who is now in power and still looking for him, if he were to return to his home country.         

17.  For the reasons set out below, we are of the view that the matters put forward in the written submissions do not constitute viable grounds of appeal:

(1)  The various complaints against the decisions of the Director and the Board (Grounds (5) to (7)) were not raised in the application made to the Judge.  It is not permissible for the applicant to advance new grounds on appeal, especially when they are fact-sensitive.

(2)  In any event, the applicant’s complaints are either lacking in particulars (namely, ground (6)) or have no relevance to the case (namely, Ground (7)). 

(3)  Ground (5) is unfounded.  The applicant did not attend the appeal and further did not respond to the Board’s invitation for explanation and notice under section 15, Schedule 1A of the Immigration Ordinance that it would proceed to determine his appeal. The Board could not be faulted in proceeding to determine his appeal.        

(4)  As to grounds that are directed at the Judge’s decision, Grounds (1) and (2) are general assertions with no particular. It has not shown in what way the Judge failed to have regard to the principle of irrationality or the high standards of justice.

(5)  Ground (3) is unfounded.  In light of the detailed analysis and full reasons given by the Director and the Board in their decisions, there is simply no basis to say that they failed to give reasons for their findings and conclusions.  The complaint that the Judge failed to have regard to procedural unfairness is not made out.

(6)  Ground (4) is unarguable.  In the application for leave to apply for judicial review, the applicant had not provided any ground to challenge the Board’s assessment and findings.  Despite that, the Judge had examined the Board’s decision and concluded there were no proper grounds to disturb it.

(7)  Ground (8) is untenable in light of the findings made by the Board.    

18.  We have separately considered the Board’s decision.  Like the Judge, we also do not discern any viable ground to disturb the Board’s decision.  We agree that the intended judicial review has no prospect of success and the Judge was correct in refusing to give leave to apply for judicial review.           

19.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 4 March 2022. 

[1] [2021] HKCFI 2170

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] Order 64 rule 1(1) of the Rules of the high Court.

[7] Order 3 rule 3 of the Rules of the high Court.

[8] [2022] HKCFI 478