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CAMP 215/2022
[2023] HKCA 261
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 215 OF 2022
(ON AN INTENDED APPEAL FROM HCAL 560/2019)
____________________
____________________
| Before: |
Hon Chu VP and Barma JA in Court |
| Date of Judgment: |
8 March 2023 |
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of Campbell-Moffat J (“the Judge”) dated 9 March 2022 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 11 January 2016 and 22 February 2019 (“the Board’s 1st and 2nd Decisions” respectively), dismissing the applicant’s appeals against the decisions of the Director of Immigration (“the Director”) dated 6 October 2015 and 15 February 2017 rejecting the his non-refoulement claim (“the Director’s 1st and 2nd Decisions” respectively).
Background
2. The applicant is a national of India. He entered Hong Kong on 27 July 2015 on the strength of his Indian passport. On the same day, having been refused permission to land, he lodged a non-refoulement claim.
3. The applicant’s claim was based on a fear of being harmed or killed by a Sikh family by reason of, inter alia, his faith as a Christian. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of her decision (“the CALL-1 Form”)[1].
4. By a Notice of Decision dated 6 October 2015 and a Notice of Further Decision dated 15 February 2017, the Director decided against the applicant’s claim. The Director’s 1st Decision covered the torture risk[2], the persecution risk[3] and the BOR 3 risk[4], while the Director’s 2nd Decision covered the BOR2 risk[5].
5. The applicant appealed to the Board. By the Board’s 1st Decision dated 11 January 2016, the Board dismissed the applicant’s appeal in respect of his claim based on the BOR 3 risk, the persecution risk and the torture risk after an oral hearing on 4 December 2015. The Board concluded that the applicant’s evidence was riddled with discrepancies, and thus there was no reliable evidence to support the alleged fear or risk of harm.
6. As for the applicant’s claim based on the BOR 2 risk, after a hearing on 24 January 2019, at which the applicant was present, the Board dismissed the appeal on 22 February 2019 by the Board’s 2nd Decision.
The Judge’s decision
7. The applicant filed a Form 86 on 27 February 2019 seeking to judicially review “the decision made by [the] Immigration Department … on 22/2/2019 [which is the date of the Board’s 2nd Decision]”. The Judge treated this as the applicant’s intention to judicially review the 1st and 2nd Decisions of both the Director and the Board ([8] of the CALL‑1 Form).
8. The applicant did not set out any grounds of review, and simply stated in his supporting affirmation that he “would like to reject and review the decision made by Immigration Department” and that “they disregard my dangerous situation”.
9. After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [8] to [13] of the CALL‑1 Form:
“8. The applicant seeks to review the Decisions of both the Director and the Adjudicator. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeals as a rehearing, the Decisions of the Director are not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with.
Decision of the Adjudicator
9. The Adjudicator analysed the applicant’s claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. The applicant confirmed the truth and accuracy of his claim. The applicant was provided with an opportunity to explain the changing grounds of the threats against him which originally centered on the need for him to convert to Sikhism in order to marry his girlfriend and then to simply a threat to convert without more. The fear arising from any political connection the girlfriend’s family had was not made out. The Adjudicator took all matters into account, investigated the issues arising thoroughly and correctly set out the law and key legal principles including the burden and standard of proof. The applicant did not fulfil the burden placed upon him.
Leave to apply for judicial review
10. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to her non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator. It is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.
Grounds of review
11. There were no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
12. Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.
13. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”
The present application for extension of time to appeal
10. The applicant’s address as stated in his Form 86 was Wan Lok Street, To Kwa Wan (“the Wan Lok Street Address”). According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Wan Lok Street Address on 9 March 2022, but these were returned undelivered.
11. Subsequently, it came to the court’s attention that the applicant’s updated address was in fact at Hung Wan Street, To Kwa Wan (“the Hung Wan Street Address”). A copy of the CALL-1 Form and a sealed copy of the Judge’s order were therefore sent to the Hung Wan Street Address on 15 March 2022. This time, they were not returned undelivered.
12. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 9 March 2022.
13. The applicant thereafter took out a summons in the Court of First Instance on 22 April 2022 seeking extension of time to appeal, in which his address was stated to be the Hung Wan Street Address. In his supporting affirmation filed on the same date, he stated that he did not receive any correspondence from the court, and that matters had been further delayed by the court’s general adjournment of proceedings (“GAP”).
14. The applicant’s application for leave to appeal out of time was dismissed by the Judge on 15 June 2022[6].
15. By a summons filed on 27 June 2022, the applicant renewed his application for an extension of time to appeal before this court. The summons also sought leave to advance a new but unspecified ground of appeal. In his supporting affirmation, the applicant repeated the explanations made to the Judge in the application below, and complained that the Judge’s decision was made unfairly without allowing him an opportunity to “clarify” his case.
16. In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submission with the court. He is thus deemed to have abandoned his right to rely on written submissions.
Discussion
17. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
18. As noted above, the Judge’s Decision was sent to the last known address of the applicant (which at that time was the Hung Wan Street Address), and was not returned undelivered. The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.
19. The date on which the applicant had moved from the Wan Lok Street Address to the Hung Wan Street Address is not known, but in any event, it is incumbent upon the applicant to notify the court of any change of address as soon as possible.
20. As to the applicant’s explanation that his intended appeal was delayed by reason of the GAP, we note that the GAP took place from 7 March to 11 April 2022, with court business (including the registry) resuming on 12 April 2022. However, the application for extension of time was not taken out in the court below until 10 days later, on 22 April 2022. There is also no explanation on the part of the applicant as to how and when he had come to learn of the Judge’s decision dated 9 March 2022.
21. In the circumstances, we reject the applicant’s explanation and reason for his delay in lodging his intended appeal.
22. We have nonetheless proceeded to consider the merits of the intended appeal.
23. The Judge was correct, pursuant to the principles stated in Re Moshsin Ali [2018] HKCA 549, in treating the application for leave for judicial review against the Board’s Decisions only.
24. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decisions, or how such Decisions could be said to be Wednesbury unreasonable. That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge.
25. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that she had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
26. We also do not see any substance in the applicant’s complaint that there was no opportunity to present his case to the Judge, as he did not request an oral hearing for the purpose of the court’s determination of his application for leave for judicial review.
27. It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge. This has clearly not been done here.
28. For these reasons, we do not see any prospect of success in the intended appeal. This court will not grant an extension of time for a hopeless appeal. The summons filed on 27 June 2022 is accordingly dismissed.
(CARLYE CHU)
Vice-President |
(AARIF BARMA)
Justice of Appeal |
The applicant acting in person
[1] [2022] HKCFI 672
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[6] [2022] HKCFI 1818
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