RE KPS

CAMP 41/2020

[2021] HKCA 442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 41 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 62 OF 2016)

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J U D G M E N T

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

Introduction

1.  By the decision of 5 March 2018 (“the Decision”)[1], Deputy High Court Judge Marlene Ng (as she then was) (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 4 March 2016 and the decision of the Director of Immigration (“the Director”) dated 22 December 2014.

2.  On 13 January 2020, the applicant took out a summons for an extension of time to appeal against the Decision.  On 20 May 2020, the Judge refused to grant leave for the applicant to appeal against the Decision out of time (“the Leave Decision”)[2].

3.  By a summons dated 26 May 2020, the applicant sought leave from this Court to appeal out of time against the Leave Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 16 June 2020, the applicant was directed to lodge his written submissions in support of his summons on or before 2 July 2020.  The applicant lodged his written submissions as directed. 

5.  Under Order 59 rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of India.  He came to Hong Kong as a visitor on 30 March 2007 and was permitted to stay for 14 days.  He did not depart and overstayed since 14 April 2007.  He was arrested by the police on 2 December 2007 and was then transferred to the Immigration Department for investigation.  On 13 December 2007, the applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment that he would be subject to torture if refouled.  Upon the commencement of the unified screening system on 3 March 2014, the applicant’s claim was taken to be a non-refoulement claim.  The basis of the applicant’s claim was that if he were to return to his country, he would be harmed or even killed by a rich and influential moneylender Muthu Kumar (“MK”) and his men for his failure to repay his debt.  The factual background was succinctly summarized by the Judge at [3] – [14] of the Decision.

7.  By a notice of decision dated 22 December 2014, the Director assessed the applicant’s claim on the BOR 3 risk[3], the torture risk[4] and the persecution risk[5] grounds and determined it against him. 

8.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  After the hearing on 18 May 2015, the Board dismissed the appeal on 4 March 2016.  After due consideration of the applicant’s case and his oral evidence, the Board took the view that the alleged assault and use of violent means related to the repayment of a private debt.  There was no evidence suggesting any state or official instigation or authorization. There was no medical evidence showing injuries amounting to severe pain and physical/mental suffering that satisfied the relevant element for torture risk.  Further, internal relocation would be a viable option.  For the aforesaid reasons, the Board rejected the applicant’s case on all applicable grounds. 

9.  On 16 March 2016, the applicant filed Form 86 together with his supporting affirmation for leave to apply for judicial review of the Director’s and the Board’s decisions.  On 5 August 2016, he applied to amend the Form 86 and his application was granted by the Judge.  In the Amended Form 86, the applicant advanced the following grounds of relief:

(1)  procedural impropriety in respect of the Board’s decision, i.e. failure to seek clarification at the oral Hearing on matters requiring clarification (“Ground 1”);

(2)  illegality in respect of the Director/Board’s decisions, i.e. error of law or misdirection in law (“Ground 2”);

(3)  illegality and procedural impropriety in respect of the Director’s/Board’s decisions, i.e. failure to make sufficient enquiry and failure to provide adequate reasons (“Ground 3”);

(4)  illegality in respect of the Director’s/ Board’s decisions, i.e. failure to take into account relevant considerations and taking into account irrelevant considerations (“Ground 4”); and

(5)  for all the above matters, the Director’s/ Board’s decisions were irrational as there was no or no sufficient basis to support the conclusion that the applicant would face no risk of torture if returned to India (“Ground 5”).

The Judgments below

10.  The Judge heard the case on 9 September 2016.  By the Decision made on 5 March 2018, she refused leave for the applicant to apply for judicial review after due consideration of the Director’s and Board’s decisions.  The reasons were set out at [49] to [82] of the Decision (without the footnotes):

“49. In my view, Ground 1 had no merit. This ground criticised the Adjudicator for failing to seek clarification at the oral Hearing on matters that allegedly required clarification, eg why KPS did not seek protection upon arrival in Bangkok and/or in Hong Kong, and only lodged his non-refoulement claim after he overstayed in Hong Kong and was arrested by the police. This ground also criticised the Adjudicator for speculating that if KPS was in genuine fear of his life he would have approached an officer or taken other likeminded steps.

50. Although it was said the exercise for determining a non-refoulement claim was a “joint endeavor”, which recognised that an applicant might be disadvantaged in presenting information / materials he might need to establish his claim or the decision-maker might need to process it, there would be limits to what high standards of fairness would require of the decision-maker. The Court of Final Appeal in Prabakar was concerned with an unrepresented applicant. But like the applicant in TK v Jenkins & anor, KPS was represented and assisted by the DLS. In TK v Jenkins & anor, Cheung CJHC in commenting on the duty to make inquiries stated that where the applicant was all along represented, within reasonable bounds, the applicant’s side was expected to conduct its own investigation and obtain information / materials that it required to support / prove its case, so depending on the facts of each case “[there] may be no duty [for the DOI] to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention”. High standards of fairness did not entitle the applicant, having stated his claim, to simply sit back and require the decision-maker to disprove it. “He takes the initiative in preparing his claim and it is he who knows the basis, both factual and legal, on which he puts his claim. Furthermore, he enjoys the benefit of legal representation to assist him in establishing it. He clearly must play a pro-active role in presenting and substantiating it and assisting the [decision-maker] to process it” (my emphasis). If the applicant and his legal representatives had not seen fit to obtain and supply such information to the decision-maker, high standards of fairness would not require the decision-maker to do so for the applicant “at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated”.

51. McWalters J (as he then was) in AM v Director of Immigration & anor reiterated the separate roles played by the applicant and the decision-maker in the “joint endeavour”. The claim is that of the applicant who bears the ultimate responsibility for it throughout the processing of it. The burden of proof always remains on the applicant being the person claiming protection from refoulement. On the other hand, the decision- maker has a reactive role, which is “not to assist the applicant to establish his claim – that is the role of the claimant’s lawyer. Rather, the [decision-maker’s] role is to ensure that the claim is fairly processed and this may, at times, involve him in using his resources to assist the claimant in addressing matters relevant to the processing of the claim”.

52. As to how the above principles should be applied would depend ultimately on the facts and circumstances of each case. But, in short, whilst it is true that the law requires the Adjudicator to act fairly and with commonsense in relation to information required by an applicant to prove his case, KPS cannot simply sit back to require the Adjudicator to disprove his case.

53. KPS (and no doubt his legal representative as well) was aware that the Interview was the principal forum/opportunity to clarify his case and to address points of contention, and that he should include all information/ documents he wished the DOI to consider. But as KPS acknowledged, opportunity had already been given to him at the Interview to explain the matters in paragraph 49 above. By the Notice of Appeal/Petition filed by KPS, he was notified to include all information he wished the Board/ Adjudicator to consider and to set out all grounds of his appeal/petition. KPS signed the declaration in the Notice of Appeal/Petition that he believed the information he supplied was complete, correct and up to date in every detail. KPS must have known he could have raised relevant issues/explanations or submitted further documents, and if he had any difficulty he (or his legal representative) could have made enquiries with the Board. Further, the matters of complaint under Ground 1 had been canvassed by the DOI in the DOI Decision, so KPS and/or his legal representative for the second-tier appeal/petition must have known of their significance to KPS’ claim (and how they were treated in the DOI Decision), and whether they were subjects KPS would wish/need to deal with at the Hearing and when he gave evidence.

54. As for the Hearing, KPS was legally represented, and had been afforded opportunity to present his case as he wished, to provide any documentary support, and to address matters of concern, which evidence had been considered by the Adjudicator. As noted in paragraph 39 of the Adjudicator Decision, matters of concern under Ground 1 were asked of KPS, and the Adjudicator took note of his answer that he did not know the system of raising claim until he was arrested.

55. As regards KPS’ criticism of the Adjudicator’s attitude in putting KPS to strict proof by putting “leading questions” to him or questions which the Adjudicator already knew the answer to discredit KPS, KPS did not refer to any specific examples to support his bare assertion. In my view, it was only fair for the Adjudicator to put matters that on their face gave concern to KPS so as to afford him opportunity to clarify and/or explain. Further, the Adjudicator had access to the TCF, SCF and Interview, so he must have known some of KPS’ responses to certain questions that the DOI put to him. But I cannot see how it could be said to be procedurally improper/ unfair if KPS was afforded opportunity at the Hearing to clarify matters of concern. Further, given KPS’ confirmation at the hearing before me that he was unable to obtain any further documentary proof in support of his assertions, it was not unfair for the Adjudicator to note there was lack of extrinsic evidence other than the documents submitted.

56. More importantly, the Adjudicator did not rest his primary decision on lack of credibility. In fact, he rested his primary decision independently of any lack of credibility (see paragraph 29 above). That being the case, his observations on the issue of credibility in relation to KPS not making prompt application for non-refoulement protection upon arrival in Bangkok and/or in Hong Kong was neither here nor there. Ground 1 also touched on matters in relation to the Adjudicator’s treatment of the COI, which I shall deal with below.

57. As regards Ground 2, KPS complained that the DOI and Adjudicator erred in not accepting he suffered severe physical or mental suffering when he not only lost consciousness but also suffered head injury that required suturing and also injury to back, limbs and eyebrow that required hospitalised treatment as a result of beating/assault as well as multiple death threats. It is useful to consider this ground together with KPS’ further complaint in the KPS Aff that the DOI/Adjudicator failed to consider the psychological harm that befell KPS as a result of the facts stipulated in his claim.

58. Pain or suffering in the definition of torture can be physical or mental. Whilst it may be reasonable to expect mental impact on a person who experienced life threat, the degree of mental impact varies between different persons. In paragraph 33 of the DOI Decision, the DOI expressly referred to the “torture” definition under section 37U(1) of the IO (which included mental suffering), and in paragraphs 26-27 of the DOI Decision he expressly referred to the BOR3 Risk which concerned “ill-treatment (physical and/or mental suffering)”. The Adjudicator also expressly referred to the “torture” definition and BOR3 Risk in paragraphs 6 and 22-24 of the Adjudicator Decision.

59. Plainly, the DOI was alive to the issue of mental suffering, but did not specifically address it because this was not KPS’ case before the present judicial review, nor has KPS produced any medical evidence to support a case of mental pain/suffering despite the fact he was legally represented before the DOI. Notwithstanding the high standards of fairness, an applicant bears the initial burden of proof. It is incumbent upon him to put in information and submissions on which he intends to rely to prove his case.

60. The DOI was clearly alive to KPS’ claim to have fear from death threats. He had taken into account KPS’ complaint of assault by MK and his men (only once when he was brought to an unknown place in C area), and noted MK and his men had left by the time KPS regained consciousness. But even on KPS’ case he was able to escape on his own after the alleged assault, to telephone his friend J, and to take a 3-hour bus journey before receiving any medical treatment, and he was discharged after 2 days of hospitalisation after some suturing. In my view, there was sufficient evidential basis for the DOI to find that KPS’ injuries were not severe, and that (if the attack on him did happen) MK and his men merely wanted to teach him a lesson rather than to kill him as he feared (as MK and his men did not use the opportunity, especially when KPS was unconscious, to kill or harm him despite alleged death threats). Having considered the above matters, and bearing in mind the relevant “ill-treatment (physical and/or mental suffering)” generally had to involve “actual bodily injury or intense physical or mental suffering”, the DOI was not satisfied KPS’ condition reached that threshold. I see no error or misdirection of law.

61. As for the Adjudicator, it was incorrect to say he merely focused on KPS’ loss of consciousness. He also took into account other factors, eg KPS’ ability to escape from the room where he was kept, to telephone his friend J, and to travel for 3 hours without medical complications. In my view, taking into account the totality of the evidence before him, it was open to the Adjudicator to conclude that KPS had not suffered serious injury.

62. KPS complained under Grounds 2-3 that the DOI and Adjudicator in considering the extended concept of state acquiescence failed to deal with his claim that the Indian police was corrupt and not functioning at all, erred in focusing on whether he complained to the police and/or sought help from other authorities in India, cherry-picked materials from the UK Report 2012 that were adverse to him, failed to fully/properly consider and to sufficiently inquire into the COI to assess the effectiveness of avenues for police assistance or for complaints against the police in India and to assess whether such avenues were implemented effectively, which matters according to KPS reflected that the Adjudicator only endorsed the DOI’s assessment without treating the appeal as a re-hearing of KPS’ case.

63. In Prabakar, Li CJ commented on what high standards of fairness require in relation to torture claims:

“…… (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”

64. What will satisfy the requirement of high standards of fairness would inevitably vary from case to case. It was said in Prabakar that it would not be appropriate for the Secretary for Security to sit back and put the applicant to strict proof, but he instead should draw the applicant’s attention to issues which obviously required clarification/elaboration and/or instances where it was readily apparent that something had gone amiss. After all, the exercise for determining the claim was a “joint endeavour”, and I reiterate the explanation of this process in paragraphs 50-51 above.

65. Here, the complaint was that the DOI should have delved more deeply by conducting independent inquiries into and critical analysis of the COI material. In my view, the extent to which the DOI had to research into COI materials depended on how KPS framed his claim. The relevant enquiry was focused on the elements of state involvement / acquiescence and the consideration of internal relocation.

66. In AM, McWalters J (as he then was) cited the opinion of the Committee against Torture in relation to the scope of state acquiescence. His Lordship pointed out there could be active and passive state acquiescence. The former occurred when the state failed to exercise due diligence to prevent, prosecute and punish a non-state official or private actor. The latter occurred when the state’s indifference or inaction provided a form of encouragement and/or de facto permission to the conduct of a non-state official or private actor. In both scenarios, the state must know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-state official or private actor.

67. In the DOI Decision, the DOI was acutely aware of KPS’ alleged fear of inadequate protection from the Indian police/government although the DOI also noted it was KPS’ own volition not to report to the police or authorities the potential risk if there was any threat or harm made against him rather than he had been refused by the police or the authorities. In my view, the DOI had, amongst other matters, specifically addressed KPS’ distrust of the police, and in paragraphs 4 and 14-15 of the DOI Decision the DOI referred to “relevant [COI] relating to this claim” listed in the appendix thereto and/or took into account relevant country information. The DOI also quoted extensively from materials stated in the COI. Clearly, the DOI had considered various COI that appeared to corroborate KPS’ concerns and those showing some state protection and also improvement in the delivery of justice.

68. As explained above, the DOI accepted there were reports that (a) Indian law enforcement agencies could be bribed and officials were perceived to be corrupt and (b) the criminal justice system in India was deficient in protecting human rights for the poor and vulnerable, but the DOI also noted there were recent reports which revealed the Indian government had taken steps to improve police discipline and also access to the courts, and further revealed other avenues to seek justice in India. In short, the DOI considered COI both against and in favour of the existence of state protection before (i) concluding that the Indian government had taken steps to improve police discipline and reduce corruption, (ii) coming to the view that there was nothing to show the Indian police/government was, is or will be unwilling or unable to exercise its power to provide reasonable protection to KPS as it would do to other citizens should KPS wished to be assisted, and (iii) declining to accept that reasonable state protection could not be readily available to KPS upon his return to India. The DOI also noted from available COI there were rules and regulations in India to regulate moneylending and moneylenders, and to penalise molestation of debtors, and there were avenues for complaints against the police. On the matter of internal relocation, the DOI noted that internal relocation was permissible under Indian law, and he considered the size and population of various districts (see footnotes 2-3 above) before coming to the assessment that internal relocation was available.

69. It was plain from KPS’ Notice of Appeal/Petition that KPS and his legal representative were well aware of the issue in relation to the COI, and KPS should have no difficulty in urging the Adjudicator to consider any particular COI or any particular aspect of cited COI if he wished. If he wanted the DOI to consider any further information or evidence for the inquiry, it was for him as part of the “joint endeavor” to request that be done.

70. In my view, the DOI/Adjudicator demonstrated due consideration had been given to the COI. The DOI had demonstrated a sufficient degree of balance in his approach, and had given reasons for his views on available COI materials, which reasons could not be said to be inadequate. The criticisms discussed in AM on unqualified favourable conclusions despite inconsistent information could not be properly raised here against the DOI.

71. Here, not only did the Adjudicator note the DOI Decision canvassed various COI, he actually reviewed/summarised the COI that he had identified, and set out his observations on the implications of such COI in paragraph 17 of the Adjudicator Decision. The Adjudicator also put those COI and their implications to KPS and invited his comments. KPS (who was legally represented before the Adjudicator) had not shown what other COI he had provided to the Adjudicator that the Adjudicator failed to consider.

72. KPS was legally represented when he made his non-refoulement claim under the USM, and he was in the best position to understand how he was to present his claim, and to know what materials would assist him in establishing his case. In this regard, I bear in mind the observations that had fallen from the Court of Appeal in Re MI:

“42. Before leaving this appeal we wish to observe that the common complaint of CAT claimants during the judicial review process is that neither the [DOI] nor the Adjudicator properly understood the basis of the applicant’s claim or that they had failed to have regard, or sufficient regard, to country materials. Lawyers for the claimant then set out in some detail in the Form 86 the legal basis of the applicant’s claim, the legal principles applicable to it and the country materials to which the [DOI] and Adjudicator should have had, but didn’t have, regard. We find this extraordinary given that the courts have repeatedly said that the processing of the applicant’s CAT claim should be one of joint endeavour.

43. The process of joint endeavour is exactly what it says, a process in which the applicant, his legal representative and the [DOI] work together. The [DOI] should not hesitate to involve the applicant and his legal representative in assisting him to better understand the nature and basis of the claim. There is much less room for misunderstanding and complaint when the [DOI] has shown he understands clearly the basis of the applicant’s claim and has had regard to the materials on which the applicant relies.

44.  We see no reason why the [DOI] should not require from the applicant’s legal representative, if he has one, a statement of the legal basis of the applicant’s claim, how the requirements of the CAT are met and, where relevant, the country materials on which the applicant relies.  Where the applicant’s claim is based on the extended concept of State acquiescence, the lawyer could be required to explain how it is said there has been a failure of due diligence by the State and how such a failure would subject the applicant to the risk of torture. These comments are just as applicable to the petition stage of the proceedings should the applicant be legally represented at that stage.”

73. Further, I find KPS’ complaint that the DOI cherry-picked materials from UK Report 2012 that were adverse to KPS’ case unjustified. First, judging from the summary of the COI cited in paragraph 14 of the DOI Decision the DOI must have been aware of certain unsatisfactory aspects as to the state of affairs in India. Secondly, most of the UK Report 2012 that KPS referred to for Ground 2 was, for the purpose of determining KPS’ case, not much more than confirmation of the aforesaid general state of affairs. Thirdly, it was not suggested the situation in India was so bad that effectively the whole population should be regarded as justifying non-refoulement status, which meant the relevant test was whether KPS’ risk of harm must be “personal and present” as explained in TK v Jenkins & anor at p 538 (see paragraphs 75 - 76 below). Here, any risk of harm against KPS had to be related to his being a debtor to MK, which was a private matter between him and MK, and that risk had to be considered in the context of the DOI’s conclusion that the alleged ill-treatment was not severe, and the opportunity of relocation to other parts of India. Fourthly, it did not necessarily follow from DOI’s lack of express reference to parts of the UK Report 2012 now relied upon by KPS that the DOI misunderstood the COI or he was biased. Have considered the analysis of the COI in the DOI Decision, I find the DOI had demonstrated a sufficient degree of balance in his approach. Hence, the criticism in AM of cherry-picking unqualified favourable conclusions despite inconsistent information could not be levied against the DOI.

74. KPS also criticised the Adjudicator for failing to conduct independent inquiry as regards COI. He had not given any example of what he thought the Adjudicator should have further inquired into. As explained in TK v Jenkins & anor, the applicant cannot sit back, and a balanced view has to be taken as regards the notion of “procedural fairness”. As pointed out in paragraph 71 above, the Adjudicator summarised the relevant COI that he had considered and set out such COI and their implications in paragraph 17 of the Adjudicator Decision. At the Hearing, the Adjudicator put such COI and their implications to KPS for his comments. The COI was obviously considered together with and in light of KPS’ case and/or the findings made in relation to those matters. I cannot see how it could be said the Adjudicator failed to conduct independent inquiry as to the COI.

75. In my view, the extended concept of state acquiescence was live in the minds of the DOI and Adjudicator, and I am not persuaded by the criticism against them in relation to their analysis of the extended concept of state acquiescence. More importantly, the principle of extended state acquiescence in no way lessens the importance of demonstrating the applicant personally be at risk. For the purpose of making their determinations, the DOI and Adjudicator found against KPS that he was personally at risk of torture, cruel and inhuman treatment, so there was no duty on them to go further to consider and assess whether state protection existed in India under the extended meaning or whether any “reforms and avenues of redress” by the Indian government were effective. I find the challenge by KPS under Grounds 2-3 untenable.

76. It is also settled that the existence of a pattern of violations of human rights in a country does not by itself constitute a sufficient ground for determining that a person will be at risk of torture or CIDTP upon his return to that country. There must be additional grounds indicating the individual concerned will be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture and/or CIDTP. As Au J explained in ST v Betty Kwan & ors,

“The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return. The exercise is a risk assessment. The risk must be ‘foreseeable, real and personal’. The risk needs not be highly probable, but it must be personal and present.”

77.; The picture presented by the COI cited was not one showing the Indian government’s indifference to or inaction in respect of the unsatisfactory social conditions. Further, the fact that the Indian government’s efforts were not wholly effective did not of itself mean she was de facto permitting such problems to take place so as to facilitate and enable those perpetrating the problems to do so with impunity.

78. As regards Ground 4, since I am against KPS’ contentions for Grounds 1-3, I also do not accept his suggestion that the Adjudicator failed to take into account and give proper weight to relevant considerations/ materials as he explained for Grounds 1-3. As regards the DOI Decision, I am unable to accept his reliance on Grounds 2-3. As regards KPS’ challenge against the DOI’s reliance on the fact that he did not encounter any problem in leaving India via immigration control, nor had he been arrested, detained or otherwise imprisoned in India, it was a finding open to the DOI on the evidence. No error of law was committed. There was no merit to the Ground 4.

79. Ground 5 was a catch-all ground. In light of my conclusions on Grounds 1-4, this ground also fails. I do not consider the DOI and Adjudicator Decisions to be unreasonable in the Wednesbury sense.

80. KPS also complained that the DOI and Adjudicator failed to properly apply paragraph 2 of General Comment No 2 “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Implementation of Article 2 by States Parties” concerning the requirement that states parties must take action that will reinforce the prohibition against torture through legislative, administrative, judicial or other actions that must be effective in preventing it. In my view, this harked back to the above discussion in paragraphs 49-56 above on the concept of extended state acquiescence, and for the reasons discussed therein, I find this intended ground of review untenable.

81. In any event, the DOI assessed the risk of harm to KPS if he returned to India to be low. Likewise, the Adjudicator was not persuaded that KPS would face any risk of ill-treatment at the hands of MK and his men or at all were he to be refouled and relocated in India. By reason of the above, the DOI and Adjudicator could not be faulted for not finding for KPS in relation to any psychiatric harm or mental suffering.

82. As regards KPS’ suggestion that the DOI and Adjudicator Decisions were unreasonable in that he was attacked and tortured following which he received serious injuries and hospitalised treatment so the DOI’s assessment regarding the intention of KPS’ kidnappers and assailants was premised on false logic, I have dealt with the matter of factual findings in paragraphs 49 - 50 above, and find such contention unarguable.”

11.  The 14-day period for the applicant to appeal the Decision, as stipulated by Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), expired on 19 March 2018.  On 13 January 2020, the applicant filed a summons together with supporting affirmation to apply for leave to appeal out of time. 

12.  The summons was heard on 14 May 2020 and by the Leave Decision made on 20 May 2020, the Judge refused the application for leave to appeal out of time.  The applicant delayed his application for 1 year and 9 months and asserted that it was due to his language problem, financial hardship and ignorance of court procedures.  The Judge was not satisfied that the applicant had provided any good reason for the delay. 

13.  On the issue of merit, firstly, the Judge rejected the applicant’s complaint that he was deprived of an oral hearing as it was inconsistent with what actually happened.  Secondly, his complaint about improper assessment of his claim on BOR 2 risk [6] was totally misconceived as the Director’s decision involved in his appeal to the Board did not cover a BOR risk assessment.  Thirdly, there was no merit in the applicant’s grounds on lack of language and legal assistance.  Lastly, the allegation of discriminatory acts of the authorities towards non-refoulement claimant was without substance and untenable.   For the aforesaid reasons, the Judge did not see any prospect of success in the intended appeal and dismissed the summons accordingly.

The renewed application

14.  On 26 May 2020, the applicant filed a summons together with a supporting affirmation to seek leave to appeal against the Leave Decision.  He did not provide any ground for his intended appeal against the Decision in the summons or supporting affirmation.

15.  In his written submissions, he advanced the following:

(i)    He requested an oral hearing for his application.

(ii)   It is unfair that the high court judges never hear him in person.

(iii)  The Director and the Board are in breach of procedural fairness in that (a) they had unlawfully fettered their discretions in refusing his appeal; (b) the Board acted in a procedurally unfair manner in dealing with his appeal; and (c) the decisions were unreasonable or irrational in the public law sense or were a result of procedural errors or unfairness.

(iv)  The hearing bundle was not provided to him earlier or with interpretation causing confusion and lack of understanding on the part of the applicant at the hearing.

(v)   Everyone had the inherent right to live and be protected by the law and not be arbitrarily deprived of his life or subjected to torture or cruel, inhuman or degrading treatment or punishment.

(vi)  Article 1 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has been adopted at section 37U of the Immigration Ordinance and “torture” is defined under the relevant provision.

Legal principles

16.  As pointed out by Lam VP in Farrukh Zaib v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & other [2020] HKCA 408 at [21], whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for an extension of time before the Court of Appeal[7].   Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the Decision of out of time.

17.  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.

18.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court would 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. 

19.  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

20.  On the issue of delay, we agree with the Judge that the applicant failed to give any good reason to explain his undue delay.  The applicant has to satisfy this Court that his intended appeal has real prospect of success, before leave of appeal is to be granted, see Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re Ma [2019] HKCA 1020.

21.  Turning to the issue of merit, none of the grounds of appeal pinpointed any error of law or procedural unfairness or irrationalities against the Decision.  The grounds against the Director / the Board were vague and with no particulars.  As had been said repeatedly, general assertions would not be enough to give rise to viable grounds of appeal in a matter of this nature: Re Mizan Sikder [2019] HKCA 20; Re Imbuh Karina Binti Yamroni [2019] HKCA 950. 

22.  Upon our careful review of the Board’s decision, we found that it had taken a joint endeavour to discuss the case with the applicant and had provided him with every opportunity to elaborate and clarify his case.  In our view, the Board had properly analysed and assessed the applicant’s case and it was perfectly open for it to reach its findings and conclusion of the case.  We do not see any error of law or procedural unfairness or irregularities in the Board’s decision that would warrant the court’s intervention.   

23.  In our judgment, nothing set out in the written submissions can constitute valid ground to support the intended appeal.

24.  Lastly, we are satisfied that the Judge had reviewed the Director’s and the Board’s decisions carefully and we see no basis to intervene.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 26 May 2020 is dismissed accordingly.

26.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.

[1] [2018] HKCFI 453

[2] [2020] HKCFI 830

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[5] This refers to the 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.

[6] 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.

[7] see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].