RE VIRENDER KUMAR

CAMP 284/2022

[2022] HKCA 1307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 284 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2966 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.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge P Li (“Judge”) dated 13 January 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 19 November 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 23 March 2018 rejecting the applicant’s non-refoulement claim.

2.  On 25 March 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is an Indian national, born in 1982. He came to Hong Kong as a visitor in June 2014 but overstayed and was arrested on 3 July 2014. He lodged a non-refoulement claim the next day.

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed by a creditor who was wealthy, influential and a member of the ruling party, Bharatiya Janata Party. The factual background of his claim was set out at [22] of the Board’s decision dated 19 November 2018.

5.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6] By notice of decision dated 23 March 2018 the Director decided against the applicant’s claim.

6.  The applicant appealed to the Board against the decision of the Director. The Board did not hold an oral hearing, having satisfied itself that the requisite standard of fairness could still be maintained, and considered the appeal on the papers. The Board noted that there was nothing to show that the applicant had any problem due to his race, religion, nationality, membership of a particular social group, or political opinion. The applicant had never sustained any pain or suffering caused by the creditor. The incident that the applicant complained of did not result in any serious harm. There was no ground to believe there was a real risk of serious harm should the applicant return to India. It was also open to the applicant to relocate to other cities in India to avoid the creditor and his men. In conclusion, the Board dismissed the appeal.

The Judge’s decisions in the court below

7.  On 24 December 2018, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision, but he did not specify any ground for judicial review either in the Form 86 or in his affirmation.

8.  Based on consideration of the documents alone, on 13 January 2021 the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out at [16] – [20] of the Form CALL-1 as follows:

“ 16. The applicant applied for leave to apply for judicial review on 24 December 2018. In his supporting affirmation, he pointed out that he was in danger in his home country.

17. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.

18. The applicant had not made specific complaint of any error in the decisions of the TCAB and the Director.

19. In my judgment, there is no error of law or procedure. The decisions are reasonable.

20. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.”

9.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A).

10.  On 8 February 2021, he took out a summons to seek an extension of time to appeal against the decision of the Judge. In his supporting affirmation, the applicant simply said his problem was not finished but his claim was refused, and he wanted to challenge the Judge’s decision.

11.  The Judge determined the application on paper without an oral hearing. In his decision dated 25 March 2022, the Judge dismissed the application as he considered that there was no merit in the intended judicial review.

The renewed application before this Court

12.  On 2 August 2022, the applicant took out a summons seeking an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In his accompanying affirmation, the applicant simply said he did not agree with the court’s decisions. In his written submissions, the applicant repeated the basis of his application for protection, and claimed that the court did not read his papers and that there were many errors. He also said he received the letter from the court after the time limit had passed.

13.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  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 for appealing against a decision refusing leave to apply for judicial review, 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.

15.  The applicant’s application to the Judge for extension of time to appeal was late by 12 days, but there was a much more substantial delay after the Judge refused to extend time. There is no valid explanation for the delay. The applicant needs to show a real prospect of success in the appeal in order for time to be extended.

16.  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.

17.  In the present case, the Board rejected the applicant’s non-refoulement claim based on the findings that, even on the applicant’s own evidence, there was no ground for thinking there would be any real risk of harm in the event of refoulement, and that internal relocation would be a viable option. These findings are within the province of the Board, and the court will not interfere with such assessments unless they are vitiated on public law grounds. The applicant had failed to set out any grounds for judicial review.

18.  The applicant has also failed to show how the Judge has erred in refusing leave for judicial review.

19.  As there are no grounds of appeal advanced that point to any error in the Judge’s decision, the appeal should be dismissed. Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

20.  We do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.