RE MOHAMMAD BALLI

CAMP 84/2021

[2022] HKCA 276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 84 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 807 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 1 September 2020, DHCJ Bruno Chan (“the Judge”)  refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claim (“the JR Decision”)[1]. Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 15 September 2020.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 28 September 2020 for extension of time to appeal (which was late by 13 days).  That summons was dismissed by the Judge on 4 March 2021. 

3.  On 16 March 2021, the applicant filed his summons in CAMP 84/2021 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  Pursuant to the directions made by the Registrar of Civil Appeals on 3 May 2021, the applicant should lodge his written submissions on or before 17 May 2021.  The applicant failed to comply with the said direction and only lodged the same on 20 May 2021.

Background

5.  The Applicant is a national of India who arrived in Hong Kong on 10 November 2013 with permission to remain as a visitor up to 24 November 2013.  He overstayed and thereafter surrendered to the Immigration Department.  On 11 July 2014, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan.  The background of this case was succinctly summarized by the Judge at [2] to [4] of the JR Decision.

6.  By the Notice of Decision dated 24 November 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

7.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 7 March 2018 and by its decision dated 23 April 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [123] to [146], the Board found significant inconsistencies and contradictions in the applicant’s evidence regarding his business and financial situation in India and how he obtained the loan from his creditor.  The Board rejected the applicant’s case that he had a lending business and that he took out a loan form a creditor to start or expand his business and thus found that there is no real risk of harm by anyone if refouled.  For the aforesaid reasons, the applicant’s claim for non-refoulement protection failed on all applicable grounds.

Application for leave to start judicial review

8.  On 8 May 2018, the applicant filed his Form No. 86 to apply for leave to judicially review both the Director’s and the Board’s decisions, and put forward the following grounds for his intended challenge (as duly summarized by the Judge at [9] of the JR Decision):

(1)  The Director and the Board failed to determine the applicant’s case fully and fairly before rejecting his claim.

(2)  The Director rejected the applicant’s claim simply for the sake of rejecting all non-refoulement claims in a very uniformed approach in arriving at the conclusion.

(3)  The Director failed to take into account how powerful the applicant’s enemy is when assessing that the risk that he had faced in the past or will face in the future as low.

(4)  It was unfair to deprive him of being read and translated the Board’s decision so that he could have a better understanding why his claim failed.  

The JR Decision

9.  The application was heard on 13 August 2020 and the applicant was assisted by an interpreter at the hearing.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [12] - [16] of the JR Decision:

“12. His proposed grounds are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, while it is clear that the Director did properly consider that any risk allegedly from his creditor, no matter how powerful it may be, was a localized one without any official involvement that state/police protection would be available as well as reasonable internal relocation within India to wholly negate any risk from his creditor that his Ground (3)  is simply not reasonably arguable, nor is it for his Ground (4)  which cannot be accepted per se as a valid ground to challenge the Board’s decision.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 103 – 146 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

15.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.  

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Application for extension of time to appeal the JR Decision

10.  As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 28 September 2020 for extension of time to appeal.  That was dismissed by the Judge on 4 March 2021.  Hence, the summons to this court. 

Discussion

11.  In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

12.  As for (1), the applicant was late by 13 days between the JR Decision and the summons filed in the Court of First Instance.  His delay was not considered by the Judge as substantial. 

13.  As for (2), the reasons for the delay, in the applicant’s supporting affirmation, he explained that he was without legal assistance and was not aware of the 14-day rule for filing of appeal, but at the hearing of the summons before the Judge, he claimed that he had never received the JR Decision in the mail and only obtained a copy upon checking with the Registry but by then he was already out of time.   However, the court file showed that the JR Decision was sent to him on 1 September 2020 to his last reported address and it had not been returned through undelivered post.  Given the conflicting evidence of the applicant, the Judge was not satisfied that he had provided a good reason for his delay.  In the present summons before this Court, the applicant just mentioned that “I did not get any decision letter from the High Court so I could not apply timely.”  As his explanation was uncorroborated and lacked details, we are not satisfied that the applicant had provided any good reason for his delay. 

14.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by the Judge.  In his application for extension of time, he did not provide any proper grounds for his intended appeal and when he was invited to clarify his assertion or whether he had any ground of appeal, he merely repeated that he could not go back to his home country as his problem is still unresolved.  The Judge found no realistic prospect of success in the intended appeal and dismissed his summons. 

15.  In his summons, supporting affirmation and written submissions for extension of time before this Court, he also failed to provide any ground to reverse the JR Decision.  In his written submissions, he reiterated the background of his case and that his creditor wants to kill him.  He urged this Court to accept his application for an extension of time to appeal against the JR Decision.

16.  It is clear from the Board’s decision that the applicant’s case was rejected on issue of credibility and the Board rejected his case that he had ever taken any loan for his alleged finance business and concluded that there is no risk of any proscribed harm should he return to India.  It was perfectly open to the Board to reach its findings and conclusions and we see no basis to intervene.  We are also satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.    

17.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 16 March 2021.