RE CHAUHAN RAM PRAVESH

CAMP 200/2021

[2021] HKCA 1744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 200 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 865 OF 2018)

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J U D G M E N T

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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 Bruno Chan (“the Deputy Judge”)  dated 30 December 2020 refusing to grant to the applicant leave to apply for judicial review ([2020] HKCFI 2659)  (“the Leave Decision”). An earlier application for extension of time to appeal was refused by the Deputy Judge on 25 May 2021 ([2021] HKCFI 1421)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision dated 9 June 2017 of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 5 January 2016 rejecting his claim for non-refoulement protection (“the Director’s 1^st Decision”).

3.  Having considered the applicant’s summons dated 28 May 2021, his supporting affirmation of the same date and his written submissions dated 12 July 2021, we are of the view that it is appropriate to determine this application on paper 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 who entered Hong Kong illegally on 8 August 2013.  He surrendered to the Immigration Department on 2 September 2013 when he raised a non-refoulement claim on the basis that if refouled, he would be harmed or killed by his parents’ employer for refusing to work for him.  Details of the applicant’s claim have been summarised by the Deputy Judge at [2] - [5] of the Leave Decision.

5.  By a Notice of Decision dated 5 January 2016, the Director rejected the applicant’s non-refoulement claim on the applicable grounds including risk of torture,[1] BOR3 risk,[2] and persecution risk[3].

6.  On 12 January 2016, the applicant appealed the Director’s 1^st Decision to the Board.  On 13 January 2017, he attended an oral hearing before the Board but refused to give evidence.  On 9 June 2017, the Board dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision (“the Board’s 1^st Decision”).  Noting the material inconsistencies in the applicant’s evidence, the Board found the applicant’s claim unreliable and incredible.  It further found that state protection was available and internal relocation viable.

7.  Subsequent to the Board’s Decision, by a Notice of Further Decision dated 31 January 2018, the Director rejected the applicant’s non-refoulement claim based on the applicable grounds under BOR2 risk[4] (“the Director’s 2^nd Decision”). The applicant appealed against the Director’s 2^nd Decision to the Board on 26 February 2018.  On 12 July 2018, the Board refused to allow the applicant’s late filing of his appeal (“the Board’s 2^nd Decision”).

The Leave Decision

8.  On 18 May 2018, the applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s 1^st Decision.  No ground of judicial review was given in the Form 86 or supporting affirmation.  She also did not request for an oral hearing.

9.  By the Leave Decision of 30 December 2020, the Deputy Judge refused to grant an extension of time for leave to apply for judicial review and dismissed his application for leave to apply for judicial review for the following reasons:

“15. As the last day of the three-months period for him to file his Form 86 fell on 9 September 2017, the Applicant was therefore more than 8 months late with his intended application, and in considering whether to extend time, the court shall have regards to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: see AW v Director of Immigration [2016] 2 HKC 393.

16. In the Applicant’s case, a delay of more than 8 months must be considered as very substantial and excessive, for which he did not provide any explanation in his affirmation, and as the record shows that the decision was sent to him on the same day at his last reported address which is the same as the one stated in his Form 86, I do not see any valid reason for his serious delay.

17. As for the merits, if any, of his intended application, as noted above the Applicant did not put forward any proper ground for his intended challenge, and in the absence of any error of law 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.

18. As it 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.

19. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 43 - 51 of its decision in the absence of any oral evidence or answers from him at his appeal hearing when he declined to do so despite being invited and advised by the Adjudicator that it was necessary for him to to deal with those problematic issues which the Board had over his information previously provided to the Director in respect of his claim, and in the absence of any error of law 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 the finding of the Board.

20. Even if the Applicant were also to challenge the further decisions of the Director or the Board regarding their rejection of his BOR 2 claim, on the facts of his own case and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, and hence the Applicant’s intended challenge regarding that claim would have also failed.

21. The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim 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 no--refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

22. 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.

23. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the 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.  On 18 January 2021, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  He was five days late.

11.  The applicant attended a hearing before the Deputy Judge on 12 May 2021, when he asserted that he did not receive the Leave Decision in the mail until he was informed by his immigration officer of the Leave Decision when he reported for recognizance, but he was already out of time to appeal against the Leave Decision by then.

12.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal.  Whilst the applicant’s delay of five days was not substantial, the Deputy Judge noted that the Court records showed that the Leave Decision was sent on the same day to his last reported address which was the same as the one provided in his EOT Summons.  In the absence of any further details or independent evidence to corroborate the applicant’s bare assertions, the Deputy Judge was not satisfied that the applicant had provided any good reason for his delay.  The Deputy Judge also noted that in the absence of any error in the decision identified by the applicant, there was no prospect of success in his intended appeal.  Accordingly, the EOT Summons was dismissed on 25 May 2021.

The Present Application

13.  In his summons and supporting affirmation dated 28 May 2021, the applicant stated that he would like to appeal again as he would face hardship if he returned to his country because his life would be in danger in his country.

14.  In his written submissions dated 12 July 2021, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabaaakar [2005] 1 HKLRD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  However, the applicant had not shown specifically how these general propositions are relevant to his case.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court would have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted: Re Farrukh Zaib [2020] HKCA 408 at [22].

16.  Although the delay of five days was not substantial, the Deputy Judge was entitled and correct to hold that the applicant had not provided any cogent explanation.  In the premises, 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.  In assessing the prospect of success of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases discussed in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; Re Limbu Birkhaman [2019] HKCA 50 at [11].

18.  No valid ground of appeal can be found in the general propositions in the applicant’s written submissions of 12 July 2021 regarding high standards of fairness, reasonableness of a decision or his bare assertion that the Board acted in a procedurally unfair manner without properly assessing his credibility.

19.  More importantly, the applicant had not shown any errors committed by the Deputy Judge. General assertions of his fear if refouled do not constitute a valid ground of appeal.

20.  As the applicant failed to identify any proper grounds of appeal, there is no merit and no prospect of success in his intended appeal against the Leave Decision.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 28 May 2021 dismissed.