RE SHINTU PAUL

CAMP 438/2021

[2022] HKCA 475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 438 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 2741 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 KW Lung (“the Deputy Judge”) dated 30 June 2021 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2021] HKCFI 1679). An earlier application for extension of time to appeal was refused by the Deputy Judge on 10 August 2021 (“the EOT Decision”) ([2021] HKCFI 2220).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 29 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 March 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

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 arrived in Hong Kong on 30 June 2014 as a visitor and was permitted to remain until 14 July 2014. He did not depart and overstayed since 15 July 2014. On 6 January 2016, he was arrested by the police and was transferred to the Immigration Department on the next day. He lodged a non-refoulement on 8 January 2016 on the basis that he would be ill-treated by the village head of his village if he returned to India owing to a land dispute. Details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By a Notice of Decision dated 22 March 2018, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].

6.  The applicant then appealed against the Director’s Decision to the Board. He attended and gave evidence at an oral hearing before the Board on 16 October 2018 with the assistance of an Indian Punjabi interpreter. The Board dismissed his appeal on 29 November 2018 and confirmed the Director’s Decision. Having assessed the evidence, the Board found inconsistencies and implausibilities in the applicant’s evidence which raised doubt as to his credibility. The Board also considered there was no credible evidence that his alleged enemy took any steps to carry out his threats and that internal relocation would be available to the applicant. The Board considered that the applicant failed to substantiate his case on all applicable grounds and accordingly, dismissed his appeal.

The Leave Decision

7.  On 3 December 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. However, no ground of review was provided by the applicant in his Form 86 or supporting affirmation.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… …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.’

14. His affirmation in support of this application does not assist his application.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

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

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision 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.

10.  On 19 July 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision. By then, he was five days late with his intended appeal. In the EOT Summons and his supporting affirmation, he only stated that he did not receive the Leave Decision.

11.  By the EOT Decision, the Deputy Judge noted that the applicant had not raised any issue that the Board was in error in arriving at its decision and was unable to show that he had any reasonable prospect of success in his intended appeal. Accordingly, the Deputy Judge refused to extend time for his appeal.

The Present Application

12.  By a summons and supporting affirmation both filed on 7 October 2021, the applicant applied for leave to appeal against the Leave Decision. In his summons and supporting affirmation, he again failed to give any reason for his delay or any intended ground of appeal.

13.  Pursuant to the directions given by the Registrar of Civil Appeals on 7 October 2021, the applicant lodged his written submissions on 21 October 2021. In his submissions, he only repeated the alleged factual basis of his non-refoulement claim and that his alleged enemy would kill him.

Discussion

14.  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].

15.  Although a delay of five days was not substantial, the applicant had not provided any cogent explanation before this Court. The Court record showed that the Leave Decision was sent to the applicant at his last known address which was also the same as the one provided in the EOT Summons and the applicant failed to provide any specific particulars or evidence in support as to why he failed to receive the Leave Decision. 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]; and Re MA [2019] HKCA 1020 at [18].

16.  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 Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge 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].

17.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any error in the Leave Decision with specific particulars. As such, no viable ground of appeal was given by the applicant. The intended appeal must fail on this basis alone.

18.  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 the 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].

19.  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 the applicant’s summons dated 7 October 2021 dismissed.