RE VISHWAKARMA RAMESH KUMAR

CAMP 23/2021

[2021] HKCA 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 23 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 523 of 2017)

__________________________

________________

JUDGMENT

________________

Hon Chu JA (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 Woodcock (“the Judge”) dated 7 June 2018 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application, and also lodged a written submission on 12 April 2021.  

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 applicant’s summons, affirmation and written submission, 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 Claims Appeal Board (“the Board”) dated 4 August 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 30 March 2016 and 1 February 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of India aged 38.  He entered Hong Kong on 23 January 2014 and was given permission to remain as a visitor until 6 February 2014.  He overstayed and was arrested by the police on 10 February 2014.  He raised a torture claim on 12 February 2014, which was processed as a non-refoulement claim upon the commencement of the Unified Screening Mechanism on 3 March 2014. 

6.  The applicant’s claim is based on his fear of being harmed or killed by a moneylender named Ganga for his failure to repay his loan.  The details of the applicant’s claim were set out in the decisions of the Director and the Board and summarised by the Judge in [3] to [6] of the Form CALL-1 dated 7 June 2018[1].  We will not repeat them.     

7.  By two decisions dated 30 March 2016 and 1 February 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds.  The further decision related to the BOR 2 risk[5] ground.

8.  The applicant’s appeal to the Board was heard on 24 April 2017.  At the hearing, the applicant indicated that he did not wish to appeal the Director’s further decision.  The Board nevertheless also took the BOR 2 risk ground into consideration when determining the appeal.  By its decision dated 4 August 2017, the Board dismissed the appeal.  The Board found the applicant’s claim not proved and exaggerated, having regard to his admission that Ganga was his childhood friend and business partner with whom he used to have a good relationship, and he was unaware of Ganga having any political association or influence. The Board held that the risks claimed is neither real nor present.  It further held that, even if there is real risk of harm it would be negated by the availability of state protection and internal relocation.  The Board concluded that the applicant failed to show he was entitled to non-refoulement protection on any of the appliable grounds.

9.  On 17 August 2017, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The Judge heard the application at a hearing held on 11 January 2018.  As appears from the Judge’s summary in the Form CALL-1, the applicant’s grounds for seeking relief are (1) the Board failed to properly consider and fairly deal with the country of origin information (“COI”); (2) the interpreter mis-interpreted his evidence on his relationship with Ganga; (3) the Director erred in rejecting his BOR 2 claim without an interview or consideration of further facts, and the interpreter did not properly explain that the BOR 2 claim had been refused by the Director and he could provide further facts to the Board at the appeal hearing; (4) the Board’s findings were flawed; (5) the applicant’s opponent has since made up false cases against him; and (6) the Board did not give him an opportunity to provide additional facts. 

10.  On 7 June 2018, the Judge dismissed the application for leave to apply for judicial review and gave her reasons in [11] to [18] of the Form CALL-1.  The Judge considered that there were no merits in all the grounds put forward by the applicant in that (1) since the Board had found there was no real risk, it was unnecessary to consider whether there were state acquiescence or a pattern of mass violation of human rights; (2) the complaints about mis-interpretation made in the applicant’s affirmation were devoid of particulars; (3) the applicant accepted that his affirmation was not authored by him, and the person who wrote it had no knowledge of what transpired at the appeal hearing before the Board; (3) the applicant’s complaints about the BOR 2 claim were inconsistent with his indication to the Board that he did not wish to appeal the Director’s further decision; (4) the assertion about the applicant’s opponent making false cases against him was new evidence that was not part of his case before the Director or the Board; and (5) the applicant stated at the hearing before the Judge that the Board had given him a chance to adduce additional facts, but because he could not return to India he was unable to furnish any further evidence.  The Judge also did not find any errors of law or procedural irregularities in the Board’s decision.  She therefore concluded that the applicant’s intended judicial review had no reasonable prospect of success.   

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 order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 21 June 2018.

12.  By a summons filed on 8 September 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge Bruno Chan heard the application on 12 November 2020, and by his decision handed down on 7 January 2021[6] refused the application. 

13.  On 15 January 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

14.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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 over 26 months, which is very serious delay.  He stated in the written submission that he did not receive the Court’s decision and was only told about it by the Immigration Officer.  We have doubts about this assertion.  First, the court record shows that the Decision was mailed to the address provided by the applicant and it had not been returned by the Post Office.  Second, this assertion is inconsistent with the explanation he gave in the first application for extension of time.  At the hearing before Deputy High Court Judge Bruno Chan, the applicant explained he was late in making the appeal because he initially intended to return to his home country but changed his mind after finding out that his problems at home still existed.

16.  As we do not find his explanation for the delay satisfactory, the applicant has to show that his intended appeal enjoys a real prospect of success.  In assessing the merit of the intended appeal, the court 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 Board afresh as if it is a fresh application for judicial review.

18.  In the present application, the applicant stated in his summons that the Judge did not thoroughly read the Board’s decision, and that before the Board he did not exercise his right to talk about CIDTP (i.e. the torture risk) or BOR 2 risks as he was only interviewed on BOR 3 risk.

19.  In the written submission, the applicant asserted that he has life threat because of his failure to repay his loan.  He asked for an extension of time because if he could not appeal he would be sent back to India and would be killed by his enemy.   

20.  In our view, what was put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  He has provided no particulars to support his complaint that the Judge did not thoroughly read the Board’s decision.  It is clear from the Board’s decision that the Board had fully addressed all the applicable grounds, including the BOR 2 risk ground even though the applicant did not pursue it.  The Board had found that, on the applicant’s evidence at the appeal hearing, the applicant does not have any real risk of harm if he returns to his home country.  The applicant has not shown there are legal errors, irrationality or procedural irregularities in the Board’s finding and decision. The intended judicial review had no reasonable prospect of success, and the Judge did not err in refusing leave to apply for judicial review.

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to appeal for judicial review has no prospect of success, and it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 15 January 2021.