RE PAKHAR RAM

CAMP 177/2018

[2019] HKCA 233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 177 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 637 OF 2017)

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J U D G M E N T

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

INTRODUCTION

1.  By a decision dated 5 July 2018, Deputy High Court Judge Woodcock (“DHCJ Woodcock”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 1 September 2017 dismissing his appeal / petition regarding his non-refoulement protection claim for the reason that none of the grounds put forward by the applicant in his intended challenge was reasonably arguable or had any prospect of success.  The applicant’s application for extension of time to appeal against the decision of DHCJ Woodcock was refused by Deputy High Court Judge Bruno Chan (“DHCJ Chan”) on 20 November 2018.

2.  The applicant now renews the leave application to this Court by way of a summons dated 27 November 2018.  Pursuant to the directions of the Registrar of Civil Appeal given on 29 November 2018, the applicant lodged his written submission on 17 December 2018.  Having considered the applicant’s written submission, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court (Cap 4A).  We now hand down our judgment.

BACKGROUND

3.  The applicant is an Indian national.  He first came to Hong Kong on 12 May 2006 as a visitor and was permitted to stay until 26 May 2006.  The applicant subsequently travelled between Hong Kong and Mainland China and on 18 July 2006, he last returned to Hong Kong and was permitted to stay until 20 July 2006.  He did not depart and had overstayed since 21 July 2006.  On 5 January 2009, he was arrested by the police and on 28 September 2009, he lodged a non-refoulement claim.

4.  The applicant’s claim was based on his fear that he would be harmed by (i) his brother-in-law Gopi as he had lodged a report against him and asked the police to separate his sister from him; (ii) a member of the Indian National Congress (“INC”) called Jarnail Singh who blamed the applicant for causing the failure of INC in the election in 2001 and (iii) Burmukh Singh, husband of Raje and the family members of Raje, who accused the applicant of having an affair with Raje.  The background facts are sufficiently set out by DHCJ Woodcock in the CALL-1 Form at [2018] HKCFI 1417.

5.  By a Notice of Decision dated 13 June 2016, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 17 May 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk, and decided against him.

6.  The applicant appealed to the Board.  After a hearing on 15 June 2017, the Board dismissed the appeal on 1 September 2017 (“Board’s Decision”).  The Board found that the applicant was not a credible witness and his evidence was contradictory and fabricated for the purpose of his claim.  The fact that he had remained in Hong Kong illegally for more than three years and made no attempt to lodge a non-refoulement claim until he was arrested by the police showed that he was not a genuine asylum seeker, see: [25] – [46] of the Board’s Decision.  The Board rejected the applicant’s case in its entirety and found that he had not established his claim for his non-refoulement protection claim under all applicable grounds.

DHCJ WOODCOCK’S DECISION

7.  On 18 September 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision and he provided the following grounds for his intended challenge :

(a)  the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement for non-refoulement protection claim;

(b)  the Board had acted in a procedurally unfair manner in dealing with his appeal;

(c)  the Board’s decision in refusing his appeal was unreasonable or irrational in the public law sense or as a result of procedural errors and unfairness; and

(d)  the Board had failed to meet the greater care and duty owed to a self-represented claimant.

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, DHCJ Woodcock refused to give leave for judicial review.  She gave the following reasons in refusing leave to apply for judicial review at [16] to [21] of the CALL-1 Form :

“ Leave to apply for judicial review

16. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. The adjudicator meticulously analysed the material, claim and evidence and validated his findings. The applicant’s complaints against him and the procedure undertaken are not made out. He puts forward three grounds and I find them all to be without merit and substance.

17. In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated. This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings. There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle. Moreover, he made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

18. In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246 at (13) said 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 makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in the absence of any legal error.’

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding. There is no merit in this ground.

19. The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  The fact is, the adjudicator did not consider any such information because he did not believe the applicant was a genuine claimant.  I find no merit in this ground.

20. I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17. I refuse leave to apply for judicial review.”

THE LEAVE APPLICATION BEFORE DHCJ CHAN

9.  On 14 September 2018, the applicant took out a summons seeking leave to appeal against DHCJ Woodcock’s decision out of time pursuant to Order 53 Rule 3(4).      The leave application was heard by DHCJ Chan on 23 October 2018.  By the decision handed down on 20 November 2018, DHCJ Chan refused the leave application.

10.  DHCJ Chan found that the applicant had provided no good reason for his two-months’ delay in taking out the leave application. The applicant explained in his supporting affirmation that he had never received the decision from the court, and at the hearing of his summons, he further contended that it was only much later when he attended the Shatin Court to report on his recognizance that he was told about the decision, but then he was immediately detained by the Immigration Department and was not able to make his application until in late September 2018.  However, the applicant admitted that he had all along resided at the same address and he could not explain why he did not receive the decision.  Further, the applicant also failed to provide any intended grounds of appeal or put forward any particulars pointing out any legal errors or procedural unfairness in the decision.  In the absence of any reasonably arguable ground, DHCJ Chan held that the application was totally without merit and dismissed his application.

DISCUSSION

11.  Under section 14AA of the High Court Ordinance, Cap 4, leave will not be granted unless the court is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

12.  In the applicant’s summons, he provided the following ground of appeal :

“ I would like to inform my life is danger in my origin country in India that’s why I cannot take risk in my life could you please save my life (sic). Extension of time appeal against the order herein of Deputy High Court Judge Woodcock dated 5 July 2018 refusing the applicant’s application for leave to apply for judicial review.”

13.  In the applicant’s written submissions, he reiterated the background of his case and his fear of being harmed or killed if refouled to his home country.

14.  In our view, neither the intended ground of appeal nor the written submissions contained any viable ground of appeal against the decisions made by the Judges.  We agree with DHCJ Chan that the applicant had failed to provide any good reason to explain his delay in taking out the leave application and his intended judicial review was unmeritorious and had no real prospect of success.  We take the view that DHCJ Chan was plainly right in refusing to grant extension of time to the applicant.

15.  In any event, after our review of the materials placed before the Judges, we agree with the Judges’ decisions that the Board had achieved the high standards of fairness and was entitled to render those findings, conclusions and decisions which were all reasonable.  We do not see any error of law or procedures in the proceedings before the Board and agree with the Judges that leave to apply for judicial review should not be granted.

16.  For the reasons set out above, we are of the view that the application is totally devoid of merits and the intended appeal is doomed to fail.  Nor is there any other reason in the interest of justice why the appeal should be heard.  The summons dated 27 November 2018 is dismissed accordingly.

17.  We further make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court, that no party may request this determination be reconsidered at an oral hearing inter partes.