RE RASUL GOLAM

CAMP 439/2022, [2023] HKCA 767

On appeal from [2022] HKCFI 1273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 439 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 230 OF 2021)

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J U D G M E N T

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 10 May 2022[1] which dismissed his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affirmation. Despite directions and time extensions given by the Registrar of Civil Appeal, he has not put in any written submission to support his application. On 29 December 2022, he sent to the Court a two-page document containing 11 grounds of argument. We will treat this as his written submission.

3.  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 papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”), which rejected his non-refoulement protection.

5.  The applicant is a national of India aged 39. He last arrived in Hong Kong on 12 July 2014 and was given permission to remain as a visitor for 14 days. He overstayed and was arrested by the police on 3 August 2014. On 26 August 2014, a removal order was issued against him. He later raised a non-refoulement claim. Pending the conclusion of the processing of his claim, he was arrested on 29 July 2017 in connection with an offence of trafficking in dangerous drug, and in July 2018 was convicted and sentenced to five years and 3 months’ imprisonment. A deportation order was made against him on 28 January 2021.

6.  The applicant’s claim is based on fear of being harmed or killed by three moneylenders, who were said to be rich and connected to the Trinamool Congress (“TMC”), due to his inability to repay his debts. The details of the claim were set out in [17] of the Director’s decision.

7.  By a decision dated 21 December 2016, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

8.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 19 July 2018, during which the applicant gave evidence and answered questions put by the Board. By its decision given on 10 August 2018, the Board dismissed the appeal. After carefully and meticulously examining the applicant’s evidence and the country of origin information (“COI”), the Board concluded that the applicant was not a credible witness and did not accept the core of his evidence to be true. The Board rejected the applicant’s case that he was in a partnership business, had borrowed money for the business from three moneylenders, had been threatened and assaulted by the moneylenders and his people, and had moved from one place to another within India during which he experienced problems due to his Muslim identity. The Board found that the applicant had not faced any risk or danger in India, and would not face any risk or danger if refouled. The Board also found that, even on the applicant’s case, it did not satisfy the requirements under the applicable grounds. The Board further found that internal relocation options were reasonably available, which would negate or reduce any risks of harm faced by the applicant. The Board accordingly found the applicant failed to establish his entitlement to non-refoulement protection under all the applicable grounds.

9.  On 25 February 2021, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not put forward any ground for seeking relief.

10.  The Judge dealt with the application on paper. By a Form CALL-1 dated 10 May 2022, the Judge refused to give leave for the applicant to apply for judicial review for the reasons he gave at [14] to [19] as follows:

“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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

“13. (1).… …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.”

17. The Board had considered the evidence and given its reasons in support of its decisions. The applicant has not raised any valid ground to challenge the Board’s Decision.

18. 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.

19. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. The 14-day period for the applicant to appeal ended on 24 May 2022.

12.  By a summons filed on 7 June 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 14 July 2022[6] refused the application.

13.  On 24 October 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application. He applied for legal aid, but the application was refused by the Director of Legal Aid on 13 January 2023.

14.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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.

15.  The applicant was late by about two weeks, which is not an insignificant delay. In the supporting affirmation, the applicant explained that the delay was due to his lack of knowledge of the proper procedure. He also said it was difficult to find assistance in prison and he could not obtain legal advice. We take note that the applicant had been in jail custody. We also accept that the applicant may not be conversant with the appeal procedures. Having regard to the fact that the delay is not serious, we will focus on the merits of the intended appeal, to which we now turn.

16.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  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’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

18.  The applicant set out four grounds in his summons as follows:

(1)  The Judge erred by accepting the Board’s conclusion in rejecting the applicant’s case without considering the news about the corruption of the officials in India and the threat faced by Muslim minorities in India.

(2)  The Judge failed to consider that the PJP party, a Hindu party, led by the current Prime Minister of India, has been very oppressive towards the Muslim minorities. Recently the homes of some Muslims were burnt or destroyed amidst protests over improper comments about Prophet Mohammed made by the party spokeswoman.

(3)  The Judge erred in concluding that the applicant’s intended judicial review had no realistic prospect of success, without allowing time for the applicant to try to gather evidence for his case. The scars from attacks made by the moneylenders are still visible.

(4)  The applicant has worked vigorously to obtain documents to support his claim, but it has met with difficulties because the officials in India demanded bribes and also because the applicant had been detained in custody.

19.  The applicant’s letter of 29 December 2022 set out 11 grounds as follows:

(1)  The Judge was wrong as a matter of law for not having applied the principle of procedural unfairness when the Director was required to give reasons for his decision.

(2)  The Judge was wrong as a matter of law for not having applied the principle of irrationality to the Director’s decision.

(3)  There is some error of law in the decision on the applicant’s case. The decision-maker just relied on COI and facts that favour the rejection of the applicant’s claim.

(4)  The fact that the decision maker did not consider all relevant aspects of the applicant’s case is an error of law and an issue of great, general or public importance.

(5)  Actual life is different from what was mentioned in the COI. The decision makers and the Court ignored the overwhelming evidence of the violence towards minorities.

(6)  The Judge did not apply the law properly and did not consider procedural unfairness.

(7)  The applicant’s life is in danger in India as he might be killed or harmed.

(8)  The complaints and grounds were all prepared by the applicant himself.

(9)  The Board erred in law or had misdirected itself in the evaluation of the credibility of the applicant’s claim. It failed to properly assess and analyse the decline in safety in India and whether state protection is available to the applicant.

(10)  Assessment of credibility must be based on the decision maker’s own means of obtaining information, including COI.

(11)  The UNCHR Handbook warned against reaching conclusion on the credibility of the material facts in isolation, and required decision maker to take into account the cumulative effect of the material facts.

20.  For the following reasons, we are of the view that the matters put forward by the applicant do not constitute viable grounds of appeal:

(1)  The bulk of the applicant’s grounds and submissions relate to the Board’s evaluation of the credibility of the evidence and its assessment of the veracity of the applicant’s claim. The applicant had only made general statements without providing the supporting particulars or showing how the statements of principle apply to his case.

(2)  Further and importantly, assessment of credibility and evidence is for the Director and the Board, who are the primary decision makers. The Court will only interfere with the Board’s assessment and decision if it can be demonstrated that its decision is erroneous in law or irrational or there is procedural irregularity or unfairness. However, in his Form 86 and supporting affirmation, the applicant had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Board. Further, the Judge, having scrutinised the Board’s decision, concluded that there was no proper basis to disturb it. In the circumstances the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.

(3)  We have separately considered the Board’s decision. Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities. We see no proper basis for disturbing the Board’s rejection of the applicant’s factual case and his findings that internal relocation options are reasonably available to the applicant. There is also no room for interfering with the Board’s finding that even on the facts put forward by the applicant, they do not satisfy the requirements of the applicable grounds.

21.  For the above reasons, we agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

22.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 24 October 2022.