RE ATEEQ PASHA ABDUL GAFFAR

CAMP 209/2019

[2020] HKCA 70

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 209 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 31 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 24 May 2019 refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 21 August 2019.

2.  Pursuant to the direction given by the Registrar of Civil Appeals, the applicant had lodged a written submission on 10 September 2019.  He had previously also written to the Court on 29 August 2019, which we would also take into account in considering this application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the submissions of the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 20 October 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 19 August 2016 and 1 August 2017 rejecting his non-refoulement claim.

5.  The applicant is an Indian national.  He arrived at Hong Kong on 17 June 2015 and was given permission to remain for two weeks as a visitor. He overstayed and subsequently surrendered to the Immigration Department. On 12 January 2016, he made a non-refoulement claim based on his fear of being harmed or killed by Ramesh, a leader of the Bharatiya Janata Party who blamed the applicant, who was previously a jockey and track rider at a racecourse, for money he lost on horse betting.

6.  The applicant’s claim was detailed in the Director’s first decision at [6], and summarised by the Judge at [2] to [7] of the Form CALL-1 dated 24 May 2019[1]. The applicant’s case, in gist, is that in April 2015 when he was working as a jockey at a racecourse, on Ramesh’s request, he gave him some horse betting tips.  Some days later, Ramesh told the applicant his tips caused him to lose 2.5 million Indian Rupees.  He forced the applicant to sign an IOU under which the applicant was to pay him the amount lost within 15 days.  The applicant reported the matter to the police but they refused to take action.  Fearing for his safety, the applicant left India for Hong Kong.   

7.  By his two decisions, the Director rejected the applicant’s claim.  The first decision covers the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds, and the second decision covers the BOR 2 risk[5] ground.

8.  The applicant’s appeal to the Board was heard on 30 August 2017.  By its decision dated 20 October 2017, the Board dismissed the appeal.  Primarily, the Board, while accepting the applicant had worked as a jockey at a racecourse, rejected his claim that he was threatened by Ramesh.  The Board found the documents produced by the applicant had serious problems with authenticity, being either not genuine or fabricated for the purpose of the non-refoulement claim.  That aside, the Board considered internal relocation and state protection were reasonably available to him.

9.  On 8 January 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he set out the following grounds for seeking relief:

(1)     The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement.

(2)     The Board in a procedurally unfair manner in dealing with his appeal.

(3)     The Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness.

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

(5)     The Board had significantly relied on sources of news not officially recognized or was simply hearsay or outdated leading to groundless speculation that it would be safe for the applicant to return to his country of origin.

(6)     The hearing was unfair to the applicant, and failed to make appropriate arrangements in relation to the hearing bundle.

10.  The Judge heard the application on 12 March 2019.  By his decision made on 14 May 2019, the Judge refused to give leave as he was of the view that the intended judicial review was not reasonably arguable, and had no realistic prospect of success.  He set out his reasons at [14] to [20] of the Form CALL-1 as follows:

“14. These are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion, or in what way was its decision unreasonable or irrational in the public law sense, or how did the adjudicator fail to take into account of relevant COI or in what way were the information outdated or not officially recognized. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

15. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

16. In the applicant’s case, the Board rejected his claim based on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in §§45 – 115 of its decision after having had the benefit of hearing him in evidence and in his answers to questions put to him at his appeal hearing, and in the absence of any legal error or procedural unfairness being clearly shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only eight days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

18. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all been already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

19. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

20. 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.”

11.  The 14-day period for the applicant to appeal the decision of the Judge, as stipulated in Order 53, rule 3(4) of the Rules of the High Court, expired on 7 June 2019.  On 12 June 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 18 July 2019, and by his decision handed down on 21 August 2019[6] dismissed the application.  On 28 August 2019, the applicant filed the present summons to renew his application for leave to appeal out of time.

12.  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 prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

13.  The applicant was late by five days, which is not a serious delay.  Before the Judge, the applicant explained that the posting of the Judge’s decision coincided with his removal, and he had duly informed the Director of his removal.  After considering the documents submitted by the applicant, the Judge accepted his explanation for the delay. Like the Judge, we are prepared to accept the explanation given by the applicant.  What is more important, however, is the prospect of the applicant’s intended appeal.  

14.  In the present application, the applicant had not set out any proposed grounds of appeal.  In the summons, he stated that he feared Ramesh would pursue him for the money lost and would act to destroy his life.  In the 29 August 2019 letter and the written submission, the applicant reiterated the basis of his claim, and his worry that Ramesh would exercise his political influence to cause the authorities to persecute and kill him.

15.  What was stated in the summons, the letter and the written submission do not constitute viable grounds of appeal.  In an appeal to this Court, the focus is on the decision and reasons of the judge in the court below.  The matters raised by the applicant in the present application, however, do not relate to the Judge’s decision.  The applicant had not pointed to any error in the Judge’s decision and reasons. 

16.  Further, as repeatedly held by this Court, assessment of evidence, risk of harm, state protection and the viability of internal relocation are matters for the Board and the Court will not intervene by way of judicial review unless it is shown that there are errors of law or procedural unfairness or irrationality in the decision of the Board: See, for example, Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In this case, the Judge had examined the Board’s decision and found no cause for interfering with Board’s findings and decision.  The applicant’s reiteration that he would be in danger of being harmed or killed by his enemy is misplaced, and cannot help to advance the applicant’s intended appeal. 

17.  For the reasons set out above, we are of the view that the intended appeal has no prospect of success. This being the case, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 28 August 2019.

18.  As the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.