RE SHARDA AJAY

CAMP 310/2021

[2022] HKCA 1134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 310 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1882 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 15 July 2020, DHCJ K W Lung (“the Judge”)  refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). 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.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 20 August 2020 for extension of time to appeal.  That summons was dismissed by the Judge on 20 July 2021.

3.  On 2 August 2021, the applicant filed his summons in CAMP 310/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 2 August 2021, the applicant lodged his written submissions in support of the Summons on 16 August 2021.

5.  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.

Background

6.  The applicant is a national of India.  He is a Hindu of the Brahmin caste but claims he eats beef.  He came to Hong Kong on 29 March 2013 as a visitor and was allowed to stay until 12 April 2013. He overstayed and was arrested by police on 28 June 2013.  He lodged his non-refoulement claim on 10 March 2014 alleging that if refouled, he would be harmed or even killed by members of the Congress Party (“CP”). He also claimed that he was also under continuous threats from Sikhs because of his family and religious background.  The factual background of this case was succinctly summarised by the Judge at [5] – [6] of the JR Decision ([2020] HKCFI 1553).

7.  By a Notice of Decision dated 7 March 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  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 13 July 2018.  By its decision dated 7 September 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [49] to [85], the Board accepted that the applicant’s father may have been the victim of a fraudulent shop allotment transaction, but did not find the applicant’s inconsistent allegations of subsequent threats to be plausible.   No detail was provided of alleged threats from Congress Party officials.  Although he and his family may have experienced tensions as Hindus living in Punjab state from the 1980’s to early 1990, there were no incidents of serious harm before he left India in 2013.  He only had a handful of encounters with a few Sikh students at college and was slapped by one Sikh student on one occasion.  The Board further found his claims that he would be shunned in India because of his alleged “capitalist mindset”, or claimed link to a Hindu mythological figure, to be “highly vague”.  Relevant country of origin information (“COI”)  suggested that unlike the situation back in the 1980s, Hindus currently constitute 38% of Punjab’s population and that they do not face any real risk of discrimination or more serious harm.  In all, there is no evidence to suggest that the applicant as a Hindu Brahmin faces any of the proscribed forms of harm because of his family background, lifestyle and opinions upon his return to India, and his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 10 September 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he did not set out any ground for relief in support of his application.

The JR Decision

10.  Although the applicant did not request for an oral hearing, he was invited by the Judge to attend a hearing on 6 December 2019 so that the court could better explain the purpose of judicial review to him.  After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [14] - [15] of the JR Decision:

“14. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 20 August 2020 for extension of time to appeal.  That was dismissed by the Judge on 20 July 2021.  Hence, the Summons to this court.

Discussion

12.  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).

13.  As for (1), the applicant was late by only 2 days between the deadline for filing an appeal against the JR Decision and the summons filed in the Court of First Instance, as time in August did not count: section 31 of the High Court Ordinance.

14.  As for (2), the reasons for the delay, the applicant explained in his summons and supporting affirmation filed on 20 August 2020 that he only received the JR Decision on 17 August 2020 and he requested the court to grant him an extension of time as his life is in danger in his home country.  The court file shows that the JR Decision was sent to the applicant at his last reported address (which is the same address as set out in his summons for extension of time)  on the day it was handed down, and it was not returned through the post.  In the circumstances, we are not satisfied that the applicant has provided any good reason for his delay.

15.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not raise any proper ground of appeal against the JR Decision.  It is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse leave.

16.  In his summons for extension of time before this Court, he complained that the Judge was wrong in accepting the Board’s findings and decision, and he had failed to consider all applicable grounds of his non-refoulement claims and in particular on the grounds of risk of violation of Articles 2 and 22 of the Hong Kong Bill of Rights Ordinance (Cap. 383).  He claimed in his supporting affirmation that his life would be in danger if refouled and he urged the Court to allow his application.

17.  In his written submissions, he quoted passages from ST v Director of Immigration[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.

18.  The intended ground of appeal stated in his summons and written submissions are vague and general, without any elaboration or specifics, and did not identify any aspects in which the Judge is said to have erred in his decision.  This Court has repeatedly held that an application for leave for judicial review is not a rehearing of the applicant’s non-refoulement claim, and the court’s role is not to act as an avenue of further appeal.  The Board is the primary decision maker and the Court would not intervene in the absence of valid public law grounds.

19.  It is clear from the Board’s decision that the applicant’s claim was rejected as he failed to substantiate his case on all applicable grounds.  The Board had generally accepted that the applicant’s factual account but did not find any evidence to suggest that he would face any real risk of harm upon his return to India now. It was perfectly open for the Board to reach those findings and conclusions, and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

20.  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 2 August 2021.