RE HUSSAIN ABDUL RAHAMAN

CAMP 131/2021

[2021] HKCA 1584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 131 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 658 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  On 31 August 2020, Deputy High Court Judge Bruno Chan (“Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 12 January 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 16 June 2016 and 6 October 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 8 April 2021, the Judge refused to grant an extension of time for the applicant to appeal against the Judge’s decision of 31 August 2020.

3.  By a summons filed 28 April 2021, the applicant sought leave from this Court to appeal out of time against the Judge’s decision of 31 August 2020.

Background

4.  The applicant is an Indian national.  He arrived in Hong Kong on 16 April 2014 and was permitted to remain as a visitor until 18 April 2014.  He did not depart, and overstayed.  The applicant was arrested by the police on 8 June 2014 and was referred to the Immigration Department on 9 June 2014.  He raised a non‑refoulement claim on 11 June 2014. 

5.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by members of the All India Anna Dravida Munnetra Kazhagam party, in retaliation for the applicant having reported to police an incident of bribery by that party.  The factual background of the applicant’s claim was set out at [1] to [9] of Board decision.

6.  By two notices of decision dated 16 June 2016 and 6 October 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former decision covered BOR 3 risk,[1] persecution risk[2] and torture risk,[3] while the latter covered BOR 2 risk.[4]

7.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 8 November 2017, during which the applicant answered questions from the Board.  The Board noted that the incidents that might have occurred related to low‑level political activity and that the single incident where there might have been a violent intention against the applicant was one that did not evidence any intention of inflicting serious harm on him.  The Board found that as the applicant had not suffered any serious harm, there was no real risk of harm in the event of refoulement.  The Board also considered that relocation within India was viable.  In conclusion the Board found that the applicant did not make out his claims and dismissed his appeal on 12 January 2018.

The Judge’s decisions in the court below

8.  On 17 April 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation, the applicant stated that he could not go back to his country as his life was still in danger.  He did not however set out any specific grounds for judicial review in the sense of attempting to demonstrate that the Board’s decision was vitiated by some public law wrong.

9.  Following consideration of the documents only, the Judge refused to grant leave for judicial review in his decision of 31 August 2020.  The reasons for refusing leave were set out in [13]‑[18] of the Form CALL‑1 ([2020] HKCFI 2141, HCAL 658/2018) as follows:

“ 13. As the last day of the three-month period for him to file his Form 86 fell on 12 April 2018, the Applicant was therefore 5 days late with his application, and in considering whether to extend time, the court shall have regards to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14. In the Applicant’s case, a delay of 5 days in his circumstances cannot, on any view, be regarded as serious or significant, for which the Applicant did not provide any explanation, but given its relatively short delay, I am prepared to extend time for his Form 86, and proceed to consider the merits of his intended application.

15. However, as noted above, the Applicant has not put forward any proper ground for his intended challenge, and 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.

16. 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 40‑46 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.

17. Furthermore, the fact that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. 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.”

10.  The applicant failed to appeal within 14 days as required by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A).  On 15 October 2020, he took out a summons to seek an extension of time to appeal.  He explained that his appeal was late because he only received the letter from Immigration late.  In his supporting affirmation, the applicant reiterated that he could not go back to his country because his life was still in danger. 

11.  The Judge heard the summons on 25 March 2021.  In his decision dated 8 April 2021 ([2021] HKCFI 887), the Judge noted at [4]‑[5] that the intended appeal was late by more than 1 month, and that the court record showed that the decision was sent on the same day to the applicant’s last reported address without being returned.  The Judge was not satisfied that the applicant had provided any good reason for his delay.

12.  The Judge also noted that the applicant did not provide any proper or valid draft or proposed ground of appeal, or any particulars of alleged errors in the decision, or why it might be reasonably argued that the decision was unfair or unreasonable.  The Judge did not see any reasonable prospect of success in the intended appeal, and dismissed the summons accordingly.

The renewed application before this Court

13.  On 28 April 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 31 August 2020 refusing leave for judicial review.  In his summons and supporting affirmation, he stated that he still had a problem in his country and his life was still in danger, and was unable to submit his supporting documents during his interview and his oral hearing.  The applicant also explained in his summons that he submitted his judicial review late because he lacked legal knowledge and could not afford a lawyer.

14.  The applicant lodged his written submissions on 11 June 2021.  In those submissions, he reiterated that his life was still under threat from his enemies, because they were “BJP supporters” and enjoyed impunity because the police worked for them.  He also stated that he had some documents to obtain from his country, but could not do so at the moment due to the severity of the COVID‑19 pandemic in India (and the resultant lockdowns in that country).

15.  The applicant did not identify or provide any details or particulars as to any alleged errors in the decisions of the Board or the Judge.

Legal principles

16.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.  Even in the absence of a reasonable explanation for the delay, the court will still examine if he has merit in the intended appeal.

17.  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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by a judge in the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

Discussion

18.  In the present case, the applicant’s intended appeal was late by more than a month.  As we have mentioned, the Judge was not satisfied that the applicant had provided a good reason for the delay.

19.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection because he had not suffered any serious harm.  As such, the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.  Such findings were within the province of the Board, and the court would not interfere with such assessments unless they were vitiated on public law grounds. 

20.  The points raised in the applicant’s summons and submissions wholly fail to engage with the Board’s reasons for rejecting his claim, as well as with the Judge’s reasons for refusing leave to apply for judicial review.  The applicant has failed to identify any specific error in the Judge’s decision of 31 August 2020.

21.  Having considered the materials before us, we are of the view that the Judge’s observations are justified.  There was no reasonably arguable case for judicial review.  The Judge was right to refuse leave.

22.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend time for a hopeless appeal to be lodged.  The applicant’s summons dated 28 April 2021 is dismissed accordingly.

[1] 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).

[2] 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.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4] 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).