RE GOLE SURYA

CAMP 20/2019

[2019] HKCA 627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 20OF 2019

(ON AN INTENDED APPEAL FROM HCAL 7/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 28 September 2018, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 15 December 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 15 March 2016 and 22 June 2017 rejecting the applicant’s non-refoulement claim.

2.  On 23 January 2019, the Judge refused to grant leave for the applicant to appeal against the said decision out of time.

3.  By a summons dated 31 January 2019, the applicant sought leave from this Court to appeal against the Judge’s decision of 23 January 2019.

Background

4.  The applicant is a national of Nepal.  He entered Hong Kong on 17 May 2014 on the strength of his passport, and was allowed to remain as a visitor until 19 May 2014.  He overstayed and was arrested by the police on 21 May 2014.  He lodged a non-refoulement claim on 23 May 2014. 

5.  The applicant’s claim was based on the fear that, if he returned to Nepal, he would be harmed or even killed by members of the Nepal Communist Party (Maoist) because they had grudges against him.  The factual background was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2018] HKCFI 2102).

6.  By two notices of decision dated 15 March 2016 and 22 June 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3], and the latter the BOR 2 risk[4].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 28 September 2017, during which the applicant gave evidence and clarified matters raised by the Board.  After hearing the applicant, the Board found that the applicant was not a reliable witness.  The Board found that the applicant’s account recorded in the Immigration Interview Report dated 23 May 2014 (i.e., shortly after his arrest by the police) was markedly different from that he gave in Non-refoulement Claim Form dated 28 December 2015.  The Board dismissed the applicant’s appeal/petition on 15 December 2017.

The Judge’s decisions

8.  On 2 January 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The form 86 did not contain any ground for seeking relief. In the affirmation in support of the leave application dated 2 January 2018, the applicant advanced the following four grounds for judicial review, namely: (a) the lack of legal representation; (b) the lack of the legal assistance; (c) wrongful exercise of case management; and (d) the lack of fair hearing.

9.  Upon the request of the applicant, an oral hearing was held on 31 August 2018.  After summarizing the background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant leave for the applicant to apply for judicial review.  The reasons in refusing leave were set out in [11] – [19] of the Form CALL-1 ([2018] HKCFI 2102) as follows:

“ 11. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

12. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13. As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without basis.

14. It is also plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 4 – 8 of his Further Decision explain the reasons for rejecting the applicant’s claim under BOR 2 risk, of which he was entitled to do so based on the evidence available to him, and in which I am unable to find any legal error or procedural unfairness. There is again no basis for this complaint of the applicant.

15. As for his complaint in ground (3) of the Board misjudging his claim and for failing to provide any proper explanation for rejecting his claim, again the applicant was plainly wrong as the adjudicator did clearly give detailed analysis and reasoning in paragraphs 60 – 66 of his decision as to why he found the applicant not a reliable witness and rejected his claim on all the application grounds based on the evidence available to him, and again I do not find any basis in this complaint of the applicant.

16. As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board. There is simply no basis or merit in this ground of the applicant either.

17. The fact is that the applicant’s claim was rejected by the Board essentially on his credibility, and as has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, of which 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 properly and clearly identified by the applicant, as judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

18. In the premises and having proceeded to consider 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.

19. 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.”

10.  On 23 October 2018, the applicant took out a summons for an extension of time for appealing against the said decision of the Judge.  In the supporting affirmation of the same date, the applicant deposed that he was not aware of the deadline for lodging an appeal and he took time to enlist help from his friend to translate the documents to him.  The Judge heard the summons on 4 January 2019.  In his decision dated 23 January 2019 ([2019] HKCFI 188), the Judge considered that the delay was not substantial.  Notwithstanding this, the summons was dismissed on the ground that the intended appeal has no reasonable prospect of success.

The renewed application

11.  On 31 January 2019, the applicant took out a summons seeking leave to appeal against the decision of the Judge dated 23 January 2019 refusing leave to appeal out of time.

12.  In his supporting affirmation of 31 January 2019, the applicant deposed generally that:

(a)  The Judge erred in determining that there was no prospect of success in the intended appeal;

(b)  Although he has enlisted help from his friend, he was still unable to understand the judgment;

(c)  He was not directed by the staff of the judiciary to put forward any proposed grounds of appeal; and

(d)  The Judge should have given directions for him to do so if he considered that draft grounds of appeal were required.

13.  In his written submissions lodged on 25 February 2019, the applicant repeated what he stated in his affirmation in support of the application.

Legal principles

14.  Whilst it is technically possible to appeal against a lower court’s decision in refusing an extension of time for appealing, the appropriate course is to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].  Accordingly, we shall treat the applicant’s summons as if it were such a renewed application.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

16.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal: see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

17.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance 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.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant 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.

(3)  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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

18.  In the present case, the applicant was late by 11 days.  As mentioned, the Judge was prepared to accept that the delay was not substantial.

19.  In the circumstances, we shall focus on considering if the intended appeal has a reasonable prospect of success.

20.  The Board rejected the applicant’s claim for non-refoulement protection because of its adverse finding on the applicant’s credibility.  As explained, such a finding is within the province of the Board and the court will not interfere with such assessment unless there is a valid public law ground to do so. 

21.  Having rigorously examined and anxiously scrutinised the Board’s decision, the Judge could not find any public law ground that would warrant the court’s interference with the decision.

22.  In the decision dated 23 January 2019, the Judge had clearly set out the factors that the court would have regard in dealing with an application for leave to appeal out of time. Prospect of success in the intended appeal is one of the factors. Despite this, the applicant did not place before us any arguable ground for this Court to disagree with the Judge.

23.  In light of the clear statement in the decision of 23 January 2019 on the approach in considering an application for extension of time to appeal, we do not accept that he could insist on not addressing the merit of the intended appeal for want of direction to file a draft notice of appeal. 

24.  On the materials before us, the intended appeal has no prospect of success. We are of the view that the Judge’s observations are correct.  The Judge applied the relevant legal principles correctly. 

25.  In our view, the matters put forth by the applicant in his affirmation dated 23 October 2018 by themselves do not merit the grant of extension of time to appeal against the decision of the Judge.

26.  The summons dated 31 January 2019 is dismissed accordingly.

27.  We also order that, pursuant to Order 59, Rule 2A(8), the Rules of the High Court, no party may request this determination be reconsidered at an oral hearing inter partes.