RE SWARANJIT KAUR

CAMP 156/2018

[2019] HKCA 60

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 156 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 488 OF 2017)

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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)  The appeal

1.1  Deputy High Court Judge Bruno Chan refused to grant extension of time to the applicant to apply for leave for judicial review against the decision of the Torture Claims Appeal Board (‘the extension decision’).  He also refused to grant the applicant leave to appeal against his decision (‘the leave decision’).

1.2  The applicant by summons and supporting affirmation both dated 31 October 2018 applies to this Court for leave to appeal against the leave decision of the Judge.  Pursuant to the directions of the Registrar of Civil Appeals contained in a letter dated 5 November 2018, the applicant lodged her written submissions in support of this application.  We will now deal with this application on paper.

2)  Factual background

2.1  The applicant is an Indian national who arrived in Hong Kong on 6 April 2013 with permission to stay but has overstayed since 21 April 2013. The applicant raised her torture claim on the basis that if she returned to India she would be harmed or killed by her father’s creditor for refusing to marry his son to offset her father’s outstanding debt.

2.2  The background facts have been summarized in the Decision of the Judge, Form CALL-1, [2018] HKCFI 1545 at [2]-[6].

2.3  In summary, the applicant’s father borrowed money from one wealthy businessman by the name of GS.  GS threatened the applicant’s father to repay his debts in full or his son be allowed to marry the applicant in exchange for settling his debts.  Over time, GS kept threatening the applicant.  The applicant went into hiding in her relatives’ accommodation where she was undisturbed and unharmed for several months.  The applicant later received death threats from GS and decided to flee India for Hong Kong.

3)  The Director’s Decision and the Director’s Further Decision                                    

3.1  The Director decided against the applicant’s torture claim on 1 March 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2  The Director further decided against the applicant’s right to life claim on 15 December 2016 (‘the Director’s Further Decision’).  The Director’s Further Decision covered the applicant’s rights under Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Board on 11 March 2016.  After a hearing held on 29 December 2016, the Board dismissed the applicant’s appeal on 15 February 2017 (‘the Board’s Decision’).

4.2  The Judge summarized the Board’s finding as follows :

‘ 11. In its decision the Board found much of the applicant’s account of events said to have occurred in India which led to her departure were speculative, hearsay and inconceivable such as her assertion that GS would kill her so that his son could inherit the land on which her family was living when she was not even sure that the land belonged to her grandfather, or that GS caused the death of her brother in his car crash so as to make it easier to grab her family’s land is too far-fetched to be credible, or that she came to Hong Kong for saving her life, and that in any event reasonable internal relocation alternatives are available for her to safely move to Mumbai or Delhi without any fear of any threats from GS that there is no justification for her to be afforded non-refoulement protection in Hong Kong…’

5)  Decisions of the Judge

5.1  On the issue of extension of time, the Judge found that the applicant had provided no good reason for her three months’ delay in applying for judicial review.  The Judge further examined the merits of the applicant’s claim.  The Judge found that most of the applicant’s grounds for judicial review were vague and broad without any particulars which relate to her own case.  The Judge found that the applicant’s case was rejected by the Board mainly because of a finding of lack of credibility.  The Judge found it inconceivable that GS was still pursuing her five years after she left India, either for marriage or for killing her to get land from her when she has not even inherited land.

5.2  On the issue of leave to appeal, the Judge held that the applicant was merely repeating her claim as before without putting forward any ground which has any prospect of success in her intended appeal.  The Judge held that her application was totally without merit and refused her application.

6)  Grounds of appeal

6.1  The applicant stated that her ground of appeal was that she wanted to appeal against the ‘Judicial Review decision’.

6.2  The applicant’s affirmation in support of her present application merely stated that she was dissatisfied with the decisions of the Judge, and she wanted to appeal ‘the decision of Judicial Review’.

6.3  The applicant’s written submissions lodged on 19 November 2018 repeated the factual background of the applicant.  She stated that she fears for her safety if she returns to her home country.

7)  Our view

7.1  The true nature of the application before us is a renewed application for leave to appeal.  Section 14AA of the High Court Ordinance provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted.  A refusal to grant an extension of time by the Court of First Instance for leave to apply for judicial review is an interlocutory judgment of which leave to appeal is required (see Kwok Cheuk Kin, Leung Chun Ying and others [2018] HKCA 419).  Under Order 59, rule 2B(2) of the Rules of the High Court application for leave to appeal should in the first instance be made to the judge against whose judgment leave to appeal is sought.  By Order 59, rule 2B(3) where that Court refuses the application, a further application for leave to appeal may be made to the Court of Appeal within 14 days from the date of the refusal.

7.2  Hong Kong Civil Procedure 2019 at paragraph 53/14/17 stated :

‘ Where an application for leave to appeal is refused by a judge or is granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order: Order 53, rule 3 HK(4). Order 59 governs such appeals.’

7.3  This paragraph is confusing because in the context of ‘an application for leave to appeal’, the reference to Order 53, rule 3 HK(4) is wrong.  That rule deals with an appeal to the Court of Appeal against the refusal to grant leave to apply for judicial review.  It does not deal with ‘leave to appeal’ which is governed by Order 59, rule 2B.

7.4  The refusal by the Judge to grant extension of time is an exercise of discretion.  On appeal from an exercise of discretion, the Court of Appeal is not to exercise the discretion afresh but will only do so if the discretion is wrongly exercised or where the decision is plainly wrong.

7.5  We are of the view that the grounds provided by the applicant in her present application are totally without merit.

7.6  We have stated many times that assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are all primarily within the province of the Board and the Director.  The Court will not intervene unless there are errors of law or procedural unfairness or irrationality in the Board’s Decision.  The Judge having considered the delay and merits of the applicant’s intended judicial review was clearly right in refusing to grant extension of time to the applicant.

7.7  Accordingly, we will refuse the applicant’s application.  As the application is totally without merit, we will, pursuant to Order 59, rule 2A(8), further order that the applicant is not allowed to apply for an oral hearing to reconsider her application.