RE JOSEPH JEROME

CAMP 83/2021

[2022] HKCA 275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 83 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 853 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 16 May 2018, the applicant applied for leave to judicially review the decision of the Torture Claims Appeal Board given on 22 December 2016 regarding his non-refoulement claims based on torture, persecution and BOR3. On 5 August 2020, DHCJ Bruno Chan (“the Judge”)  refused to grant an extension of time for the applicant to apply for such leave, and dismissed the leave application (“the JR Decision”)[1]. 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. Excluding the summer vacation (1 – 31 August)  as specified in Order 3 rule 3, Rules of High Court (Cap.4A), the deadline for filing the Notice of Appeal expired on 14 September 2020.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 16 September 2020 for an extension of time to appeal.  That summons was dismissed by the Judge on 2 March 2021.

3.  On 15 March 2021, the applicant filed his summons in CAMP 83/2021 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  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.

5.  In compliance with the directions made by the Registrar of Civil Appeals on 3 May 2021, the applicant lodged his written submissions on 14 May 2021.

Background

6.  The applicant is a national of India.  He arrived in Hong Kong on 3 June 2013 with permission to remain as a visitor up to 17 June 2013.  He did not depart and instead overstayed and was arrested by police on 15 July 2013.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India, he would be harmed or killed by his creditor for defaulting on his loan.  The background of this case was succinctly summarized by the Judge at [2] to [6] of the JR Decision.

7.  By a Notice of Decision dated 22 October 2014 and a Notice of Further Decision dated 30 March 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claims. The Director’s decision in 2014 covered the BOR 3 risk[2], the torture risk[3] and the persecution risk[4] and the decision in 2017 covered the BOR 2 risk[5].

8.  The applicant appealed the Director’s decision dated 22 October 2014 to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 15 June 2015 and by its decision made on 22 December 2016, the Board dismissed the appeal.  On the applicant’s own evidence given at the hearing, when he defaulted on his loan, he only received verbal warnings from his creditor without any actual physical harm.  He further told the Board that his wife had repaid half of his debts and by October 2015, the remaining half of his debts would be repaid.  By then, it would be safe for him to return to India.[6] The Board found that the applicant did not suffer any injury, there was no state involvement and he had the viable option of internal relocation.  Accordingly, he had failed to establish his non-refoulement claim on all applicable grounds.[7]  The Board further found that the appeal had failed independently for lack of credibility as   he did not raise his non-refoulement claim until he was arrested by the police, 1.5 months after his arrival at Hong Kong.[8]   

9.  On 15 March 2017, the Director on its own initiative invited the applicant to submit additional facts on a claim of BOR 2 risk.  The applicant did not respond.  The Director, by a Notice of Further Decision dated 30 March 2017, found that the applicant was not subject to BOR 2 risk.

10.  On 16 May 2017, the applicant lodged an appeal to the Board against the Director’s further decision dated 30 March 2017. Based on the same background facts and for the same reasons given in the Board’s decision dated 22 December 2016, his claim on BOR 2 risk was dismissed.

Application for leave to start judicial review

11.  On 16 May 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the decision of the Director dated 22 October 2014 and the decision of the Board dated 22 December 2016.  Pursuant to Order 53 rule 4(1)  of the Rules of High Court (Cap.4A), an applicant is required to file his application for leave to apply for judicial review promptly and in any event within 3 months from the date when the grounds first arose.  The applicant was seriously out of time by 14 months.  In his Form 86, he put forward the following grounds for his intended challenge (as duly summarized by the Judge at [14] of the JR Decision):

(1)  The Director failed to appreciate or give proper weight to the presence of state acquiescence in the applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim by the Director and the Board.

(2)  The Director failed to accept the argument that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies.  Further, the public officials had failed to provide reasonable protection for its citizens including him under the duty of due diligence.

(3)  The Director failed to consider or give proper weight to those relevant Country of origin information (“COI”)  which supported the applicant’s averment that the police in India would not protect him.

(4)  The Director only relied on those COI which suited his pre-conceived conclusion.  It is a clear case of unfair attitude shown towards the applicant’s case.

(5)  The Director failed to recognize that the corruption and incompetency of the administration is a very serious problem in India which is supported by reports of various human rights organizations.

(6)  The Director failed to attain the high standards of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law.

(7)  The Adjudicator failed to make sufficient enquiry of the applicant’s case before coming to his decision.

(8)  The Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to support his non-refoulement claim.  

The JR Decision

12.  The application was heard on 7 November 2019 and the applicant was assisted by an interpreter at the hearing. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant an extension of time to apply for leave to apply for judicial review and dismissed the leave application for the reasons set out in [17] - [22] of the JR Decision:

“17. In the Applicant’s case, a delay of almost 14 months must be considered as very substantial or excessive, for which he did not provide any explanation, and as such I am not satisfied that he has had any valid reason for his such serious delay.  

18.  As for the merits of his intended challenge, most of his proposed grounds are either not relevant to his claim or are just broad and vague assertions of his containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decision, or in what way was state acquiescence relevant to his case, or how did the Director or the Adjudicator hail to make sufficient enquiry about his case of fail to apply high standards of fairness in assessing his claim, or how did they fail to properly assess and rely on the relevant COI in assessing the situation in India, or how did the Adjudicator fail to give him sufficient opportunity to adduce evidence in support of his claim or his appeal when he never raised any such issue during his appeal hearing before the Board. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

19.  As has been repeatedly emphasized by the Court of Appeal, the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

20.  As already noted above, as I do not find any of the Applicant’s proposed grounds reasonably arguable, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of either the Director or the Board. 

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

22.  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.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 16 September 2020 for extension of time to appeal.  That was dismissed by the Judge on 2 March 2021.  Hence, the summons to this court. 

Discussion

14.  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). 

15.  As for (1)  and (2), we note that the Judge, in his decision dated 2 March 2021, did not take into account the summer vacation when he held that the applicant was late by 1 month in seeking to appeal the JR Decision.  As time for service of a notice of appeal does not run in the summer vacation (see Hong Kong Civil Procedure 2022, note 59/4/5), the applicant was only late by 2 days and the delay was insignificant. 

16.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  We respectfully agree with the Judge who had applied the correct test when rejecting the application for an extension of time to apply for judicial review.  The delay was substantial and inexcusable.  Further, the applicant’s grounds of review were thoroughly considered by the Judge and were found unmeritorious.  In his application for extension of time, he did not provide any proper grounds for his intended appeal and merely repeated his claim that he still faced risk to his life if refouled.  The Judge found no realistic prospect of success in the intended appeal and therefore dismissed his summons. 

17.  In his summons and supporting affirmation before this Court, the applicant did not provide any grounds for his intended appeal against the JR Decision.  In his written submissions, he put forward the following grounds:

(1)  He requested for an oral hearing and it is unfair that the High Court never heard him in person.

(2)  There is a lack of legal and language assistance for his claim on BOR 2 risk and it is essential for the fair assessment of his claim.

(3)  The Director’s further decision in rejecting his BOR 2 risk was determined without ensuring the applicant understood his claim and his rights.  The Board’s decision has not been interpreted to him up to date.

(4)  He was not provided with legal assistance for his claim on BOR 2 risk and the high standard of fairness should entitle him to legal representation at the stage when his claim was assessed by the Director.

(5)  The respondents were in breach of procedural fairness as (a)  the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that his claim “did not satisfy the requirement”; (b)  the Adjudicator 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 was a result of procedural errors or unfairness; and (d)  the respondents failed to meet the greater care and duty owed to a self-represented claimant.

18.  Ground (1)  is a baseless and false complaint.  The court record shows that the applicant appeared before the Judge and made oral submissions in open court. 

19.  Grounds (2), (3)  and (4)  must be rejected.  The applicant did not seek leave to judicially review the Director’s and/or the Board’s decisions in respect of his claim on BOR 2 risk.  Insofar as he is now purporting to raise it, it is well established that he is not permitted to raise a new claim before this Court on appeal.

20.  Ground (5)  contains complaints against the Director’s and the Board’s decisions.  First, the decision of the Director is not amenable to judicial review once an appeal to the Board is pursued by the applicant, see: Re Moshsin Ali CACV 54/2018, [2019] HKCA 549.  Second, it is not the role of this Court to examine the decision of the Board afresh nor provide an avenue of appeal of the Board’s decision.  This Court would only intervene when there are valid public law grounds and the Judge had rightly concluded that there were none in this case.  Lastly, this Court would only examine the decision of the Judge in light of the grounds advanced by the applicant.  As no viable grounds have been put forward to reverse the JR Decision, the intended appeal is bound to fail.    

21.  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 15 March 2021.