JAMES CHAMAN LAL HARISH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 155/2024, [2025] HKCA 217

On Appeal From [2023] HKCFI 3225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 155 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1761 OF 2020)

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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.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge To (“Judge”) dated 11 December 2023[1] refusing 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 5 August 2020. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 27 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The Applicant is an Indian national born in 1966. He last entered Hong Kong on 24 May 2015 as a visitor and had overstayed since 8 June 2015. The applicant surrendered to the authorities on 12 June 2015 and raised a non-refoulement claim on 15 October 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of the political party Rashtriya Swayamsevak Sangh (“RSS”) for refusing to convert to Hinduism from his Christian faith.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] By a notice of decision dated 27 February 2018, the Director rejected his claim.

4.  The applicant appealed to the Board against the Director’s decision. The Board held an oral hearing of the appeal on 21 May 2020, during which the applicant gave evidence and answered questions from the Board. In its decision dated 5 August 2020, although the Board accepted that the applicant might face some kind of discrimination or harassment as a member of the Christian minority based on the country of origin information (“COI”), it found serious inconsistencies in his evidence and a lack of details in his account about the two incidents on which his fear of harm is founded. The Board was therefore not satisfied that the first incident had happened shortly before the applicant’s departure from India and rejected the happening of the second incident. The Board concluded that it had not been shown that there was anyone in India with enmity against the applicant to pose any threat to his well-being. Accordingly, the applicant’s appeal was dismissed and the decision of the Director was affirmed.

The Judge’s decisions in the court below

5.  On 2 September 2020, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision. He did not specify any ground for judicial review in either the Form 86 or in the accompanying affidavit, but merely asserted that he disagreed with the Board’s decision in the latter.

6.  An oral hearing was held on 20 November 2023, during which the applicant appeared before the Court in person. On 11 December 2023, the Judge issued his decision refusing to grant leave to the applicant to apply for judicial review. The reasons were set out in [21] to [23] of the Form CALL-1 as follows:

“ 21. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration [5].

22. The Applicant did not put forward any grounds in his Form 86. In his supporting affirmation, he only asserted that he disagrees with the Decision. In effect, he is seeking to challenge the Board’s finding of fact primarily about the two incidents and that he would not be at risk of harm if returned to India. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review. In the absence of proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

23. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board accepted his evidence about his background and about the discriminative atmosphere facing the Christian minority. However, it was not satisfied that the first incident occurred shortly before his departure from India for international protection or that the second incident had occurred. These two incidents are the base on which the Applicant’s fear is founded. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.”

7.  On 24 January 2024, 30 days beyond the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the applicant made an application for leave to “appeal out of time the Judge’s decision dated 11 December 2023” and “to advance a new sole ground of appeal”. In his supporting affirmation, the applicant asserted that he was not legally represented and that the Judge’s decision on 11 December 2023 was reached unfairly. He also explained that the reason for his delay was due to the Court’s failure to inform him about the 14-day time limit for appeal.

8.  On 16 February 2024, the Judge issued his decision in writing. The Judge considered that the applicant’s ignorance of the law or time limit for taking any procedures could not be used as an excuse, while his complaint about unfairness was a bare assertion lacking in particulars. Based on such findings, the Judge dismissed the applicant’s application for extension of time to appeal on the ground that there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

9.  By summons filed on 12 August 2024, the applicant made an application to this Court for leave to appeal out of time against the Judge’s decision dated 11 December 2023. In his supporting affirmation, he claimed that the decision was lost in the post and he could only obtain it upon searching the court file, by which time he had already missed the appeal deadline.

10.  In the applicant’s written submission lodged on 26 August 2024, he made bare assertions that the Judge failed to apply “the principle of irrationality” and that there was procedural unfairness as well as unreasonableness in refusing his judicial review application. He also claimed that the COI relied on by the Board was not officially recognised or was simply hearsay.

11.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  The applicant was late for 30 days when he filed his initial summons on 24 January 2024. His claim in his supporting affirmation that the delay was due to the Court’s failure to inform him about the appeal time limit had already been dealt with by the Judge in his decision dated 16 February 2024. Nonetheless, as this was not a very lengthy delay, we are prepared to focus on the merits of his intended appeal.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had heard the applicant and assessed his evidence providing detailed reasons. The Board rejected the applicant’s non-refoulement claim because of serious inconsistencies in his evidence and a lack of detail in his account about the two incidents on which his fear of harm is founded. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.  Meanwhile, all the applicant’s claims in his written submission about the breach of “the principle of irrationality”, procedural unfairness and unreasonableness as well as the reliance by the Board on officially unrecognised COI were bare assertions without any evidence in support.

16.  It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish or even identify any such public law grounds.

17.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused. The applicant’s summons dated 12 August 2024 is accordingly dismissed.