RE CHOPRA AMIT

CAMP 253/2021

[2022] HKCA 341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 253 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1794 OF 2018)

____________________

____________________

_______________

J U D G M E N T

_______________

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

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“DHCJ Lung”) dated 30 June 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 1373). An earlier application for extension of time to appeal was refused by Deputy High Court Judge P Li (“DHCJ Li”) on 29 June 2021 (“the EOT Decision”) ([2021] HKCFI 1778).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 17 August 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 4 March 2016 and 29 December 2017 rejecting his claim for non-refoulement protection (collectively “the Director’s Decisions”).

3.  Having considered the papers, 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.  He entered Hong Kong as a visitor on 30 November 2004 and was allowed to stay until 7 December 2004.  He overstayed and applied for extension of stay but was rejected.  He subsequently committed a number of offences and was imprisoned.  He made a torture claim on 17 December 2007 which was rejected by an immigration officer on 20 August 2013.  He lodged a non‑refoulement claim on 17 September 2013 on the basis that he will be harmed or killed by the boss and an employee called Sonu of a money lending company because he defaulted in the repayment of his loan owed to the company.  Details of the applicant’s claim were summarised by DHCJ Lung at [4] ‑ [6] of the Leave Decision.

5.  By a Notice of Decision dated 4 March 2016, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk^[1] including BOR3 risk^[2], and persecution risk^[3].

6.  By a Notice of Further Decision dated 29 December 2017, the Director further considered and rejected the applicant’s non-refoulement claim under BOR2 risk[4].

7.  The applicant then appealed against the Director’s Decisions to the Board.  He attended an oral hearing before the Board on 6 March 2018 with legal representation and gave evidence.  The Board dismissed his appeal on 17 August 2018 and confirmed the Director’s Decisions. The Board doubted the applicant’s credibility and did not consider him a reliable witness.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his case on the applicable grounds and that state protection and internal relocation would be available to him upon his return to India.  Accordingly, the Board dismissed his appeal.

The Leave Decision

8.  On 31 August 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  In his supporting affirmation, he contended that both the Board and the Director did not properly assess his claim.  He complained about the lack of legal assistance in his application for leave to apply for judicial review as well as the lack of language assistance in his BOR2 risk assessment.  As the applicant was absent in the hearing of the leave application before DHCJ Lung on 21 November 2019, DHCJ Lung considered his application on paper.

9.  By the Leave Decision, DHCJ Lung dismissed his application for leave to apply for judicial review for the following reasons:

“DISCUSSION

14.       The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

15.       In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.       The rhetorical questions should have been put to the applicant for his answers. However, I do not find that those questions relate to the finding of the facts by the Board. Nor would they affect the option of internal relocation open to him.

17.       The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

18.       I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.”

The EOT Decision

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order 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.

11.  On 6 November 2020, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was over 3½ months late with his intended appeal.  In his supporting affirmation, he claimed that he did not receive the letter from the High Court and only knew about the Leave Decision from his immigration officer when he reported to the Immigration Department.

12.  By the EOT Decision, DHCJ Li refused to grant the applicant extension of time to appeal.  DHCJ Li considered a delay of 3½ months as substantial and was not satisfied that the applicant had provided any good reason for his serious delay.  The applicant must also bear the consequence of failing to update his address with the Court.  Having considered the Board’s Decision and the Leave Decision, DHCJ Li considered that there was no merit in the applicant’s intended judicial review and dismissed his application for extension of time to appeal.

The Present Application

13.  By a summons and supporting affirmation both dated 13 July 2021, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, he claimed that his life would be in danger and great peril in his home country without giving any elaboration or specific particulars in support.

14.  Pursuant to the directions given by the Registrar of Civil Appeals on 13 July 2021, the applicant lodged his written submissions on 26 July 2021.  In his written submissions, he claimed that the same level of threat still existed in India and he feared to return to his home country “because of domestic violence or sexual assault that [he] experienced there”.  He also asserted that the Board failed to make sufficient enquiry before finalising its decision and failed to inquire from the Indian authorities.  He again repeated that his life would be in great peril if he went back to India and that he had no faith in the authorities.  He also cited section 37ZO of the Immigration Ordinance, Cap 115 but did not state how the provision was relevant to his case.  He further requested for his claim to be assessed with legal and interpretation assistance provided by the duty lawyer service.

Discussion

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 the applicant’s delay of over 3½ months to be very substantial and that the applicant has failed to provide any cogent explanation 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]; 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 decision of the DHCJ Lung and will only consider reversing that decision if an applicant can demonstrate that the DHCJ Lung 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.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper ground of appeal or errors committed by DHCJ Lung.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

19.  In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  As repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

20.  Although he cited section 37ZO of the Immigration Ordinance, Cap 115, he did not elaborate how it was relevant to his case and his present application.

21.  The applicant’s request for his non-refoulement claim to be assessed with legal and interpretation assistance by the Duty Lawyer Service is also misplaced as he already had both legal and interpretation assistance provided by the Duty Lawyer Service throughout the assessment of his non-refoulement claim before the Director and the Board.

22.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and his summons dated 13 July 2021 dismissed.