THEKKETHALAKKAL VASUDEVAN UNNIKANNAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 66/2023, [2023] HKCA 485

On Appeal From [2022] HKCFI 1223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 66 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 165 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 27 April 2022 refusing to grant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 10 January 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 20 April 2018 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of India born in 1986.  He entered Hong Kong as a visitor on 18 November 2014.  He had overstayed his permission to remain since 3 December 2014, and surrendered himself to the Immigration Department on 7 January 2015. He raised a non-refoulement claim by written representation on 27 March 2015. His claim is based on the fear that if he returns to India, he will be killed by his father-in-law because of their religious differences.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 20 April 2018, the Director rejected the claim. 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 7 August 2018, at which the applicant gave evidence and answered the Board’s questions.  In its decision dated 10 January 2019, the Board stated it found the applicant’s oral evidence to be vague, confused, and changing.  The Board had raised concerns with the applicant regarding the inconsistencies in his evidence but did not consider that the applicant’s responses had resolved those concerns, which reflected poorly on his credibility and reliability of his evidence.  The Board concluded that the applicant was not a witness of truth and did not accept the core factual allegations raised in his claim. Accordingly, the Board did not accept that the applicant feared returning to India for the reason he claimed or any other reason, and considered that he would not be at risk of any harm if he returned to India.  As a result, the Board dismissed the appeal and affirmed the decision of the Director. 

The Judge’s decisions in the court below

5.  On 17 January 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form.  In the accompanying affirmation, the applicant said that the Board was very unreasonable and did not go into sources relevant to his torture claim.

6.  The Judge, having considered the application on the basis of the documents alone, issued his decision on 27 April 2022, refusing to grant leave to apply for judicial review.  The reasons were set out at [9] – [14] of the Form CALL‑1 as follows:

“ 9. On 17 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he stated that he is not satisfied with the decision which depended merely on reports from the internet and sources from the Indian authorities instead of the reliable sources relevant to the Applicant’s claim. He did not however provide any further details of how the Board or the decision did so or how the Board erred in its decision, nor did he request any oral hearing for his application.

10. His complaint of the Board relying on reports from unreliable sources is factually incorrect and wholly irrelevant to his intended challenge, given the fact that the Board rejected his claim essentially on its adverse finding against his credibility for what seems to me very thorough and detailed analysis and reasoning as set out in paragraphs 35 – 72 of its decision and with the benefit of hearing the Applicant’s oral evidence and answers to questions raised of his claim at the appeal hearing, 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 to challenge these findings of the Board.

11. 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.

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

13. 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.

14. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

7.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but took out a summons two months later, on 11 July 2022, to seek an extension of time to appeal against the decision of the Judge.  In the summons and affirmation in support he stated that he did not get the judge’s judgment in time.

8.  The Judge held a hearing of the application on 23 November 2022, attended by the applicant.  He explained he did not receive the letter from the court and was therefore late.  When asked what grounds he had for the intended appeal, the applicant simply said his problems were not yet solved.  In his written decision handed down on 7 December 2022, the Judge refused to extend time as the applicant had not shown any prospect of success in his intended appeal.

The renewed application before this Court

9.  Over two months later, by summons filed on 13 February 2023, the applicant made an application to this court for extension of time for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the summons and the accompanying affirmation, the applicant simply stated that he did not get the court’s decision and that he disagreed with it.

10.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 13 February 2023.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

11.  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.  The delay of two months in this case is substantial.  In these circumstances the court will refuse to extend time unless there are real prospects of success in the intended appeal.

12.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  In the present case, having heard and discussed the evidence with the applicant, the Board concluded that his evidence was not credible or reliable and found that he will not be subject to any risk of harm if he returned to his country.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it gave in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision.  The applicant has failed to establish any such public law grounds.

13.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to extend time and to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review. 

14.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.