RE ALAM MAHIR

CAMP 185/2018

[2019] HKCA 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 185 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 125 OF 2017)

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J U D G M E N T

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

1.  On 29 April 2019, this Court (Chu and Barma JJA) handed down our judgment[1] (“the Judgment”) refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 25 August 2017.

2.  On 3 May 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission to support his application. 

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the papers before us.

4.  The applicant stated in the Notice of Motion that he would like to review the decision because there is a disregard of his dangerous situation, and that if he were to return to India, his wife would be in danger.

5.  In his written submission, the applicant put forward the following grounds of appeal:

(1)  The danger he is facing is obvious as he was threatened and his house was burnt down.  He has started a family in Hong Kong, and he will face greater danger if he were to return to his home country.  He should be entitled to protection under the BOR 2 risk ground.

(2)  His case has not been fairly assessed and there was a lack of sensitivity in understanding his case.

(3)  The Court has failed to assess the actual situation in India, which is fraught with human rights and corruption problems.

(4)  The Board relied on COI that was obtained by simple research without understanding the cultural context in India.  State protection does not really exist there and people whose lives are at stake should be granted asylum.

(5)  The Board did not deal with his diagnosis of schizophrenia fairly and correctly.  Although the diagnosis was in 2010, it did not mean he did not have problem previously.  He used drugs because he was scared and was stressed and being threatened.  He did not lie about the fear of his enemies, which eventually caused his schizophrenic condition.  There was a lack of understanding of how the illness has developed and how it has affected his well-being.    

6.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

7.  What was put forward in the notice of motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they all relate to the applicant’s personal circumstances and his claim, and do not involve any question of great general or public importance.  Secondly, for the reasons we gave at paragraphs 18 and 19 of our judgment, the applicant’s claim that he should not be refouled to India because his life would be in danger and the grounds in paragraph 5(1) to (4) above are unarguable.  Thirdly, as to the complaint under paragraph 5(5) above, this was not specifically raised as a ground for judicial review before the Judge.  Nor was it argued as one of the intended grounds of appeal in the application for leave to appeal out of time before Deputy High Court Bruno Chan or in the renewed application to this Court. It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it.[2] Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]   

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  As the statutory requirement for giving leave to appeal are not met, we dismiss the Notice of Motion.

CAMP 185/2018

[2019] HKCA 442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 185 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 125 of 2017)

__________________________

__________________________

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JUDGMENT

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

1.  By summons filed on 4 December 2018, the applicant makes a renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 25 August 2017 refusing him leave to apply for judicial review.  The applicant had previously applied to the Court of First Instance for extension of time to appeal, which was refused by Deputy High Court Judge Bruno Chan on 29 November 2018.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 24 March 2017 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 24 December 2014 rejecting his non-refoulement claim.

2.  In addition to filing an affirmation, the applicant had, pursuant to the directions of the Registrar of Civil Appeals, lodged a written submission to support his application.

3.  Under Order 59 rule 2A and 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 papers and the circumstances of the case, we are of the view that it is appropriate to determine the present application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a).

4.  The applicant is an Indian national.  He entered Hong Kong on 29 July 2007 and was given permission to remain as a visitor until 12 August 2007.  He overstayed and was arrested by the police on 16 April 2008.  On 22 May 2008, he raised a torture claim which was taken as a non-refoulement claim following the implementation of the Unified Screening Mechanism.  He completed his non-refoulement form on 29 April 2014.    

5.  The applicant’s claim is based on his fear of being harmed or killed by: (1) his uncle (“Afzal”) because he refused to transfer to him a piece of land that his grandmother had given him; (2) the brother (“Zarar”) of his friend (“Tarik”) who wrongly blamed him for the accidental death of Tarik; and (3) the police acting on Afzal’s and Zarar’s instructions.  The background of the applicant and his case was set out in detail in the decisions of the Director and the Board, and summarized by the Judge at [2] to [6] of Form CALL-1 dated 25 August 2017. 

6.  By a notice of decision dated 24 December 2014, the Director rejected the applicant’s claim having regard to the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds. 

7.  The applicant appealed the Director’s decision to the Board.  At the oral hearing on 4 February 2016, the applicant was represented by a lawyer assigned by the Duty Lawyer Service, and he gave evidence and answered questions put by the Board 

8.  By a decision dated 24 March 2017, the Board dismissed the applicant’s appeal, having considered the torture risk, BOR 3 risk and persecution risk grounds.  In gist, the Board considered the applicant’s credibility to be questionable and some part of his evidence was hearsay and speculative while some of the documents he adduced were unreliable (see [55] to [67] of the Board’s decision).  The Board concluded the applicant failed to establish there was a real chance he would suffer ill-treatment of any sort and no case was made out under the torture risk, BOR 3 risk and prosecution risk grounds.  

9.  On 10 April 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  His affirmation set out four grounds for seeking relief, being (1) the Board had unlawfully fettered its discretion by refusing the appeal on the grounds that the claim did not satisfy the requirements: (2) the Board acted in a procedurally unfair manner in dealing with the appeal: (3) The Board’s decision was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness; and (4) the Board failed to meet the greater care and duty owed to a self-represented claimant.    

10.  The Judge heard the application at an oral hearing held on 9 August 2017.  By her decision dated 25 August 2017, the Judge refused to grant leave to apply for judicial review.  In [8] to [13] of the Form CALL-1, the Judge analysed the Board’s decision, noting that the BOR 2 risk[4] ground was not covered by the Director and the Board, and concluded in [14] to [18] that:

“14.  I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully, logically and with caution. He also applied the correct standard of proof. The applicant’s complaints against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

15.  I found no substance in the grounds of this application. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. There are allegations he was ill-prepared for the hearing before the TCAB and confused during it. However, he had legal representation to protect his interest and I am satisfied the hearing was not unfair nor was there a lack of care. In the hearing before me, the applicant had nothing substantial to add. He repeated the details of his claim and reiterated the decisions made were not correct.

16.  The adjudicator rejected his evidence in its entirety and gave full and cogent reasons why. They were convincing and I am satisfied they were safe. In any event, he went on to apply the facts to the applicable grounds and found the risks did not exist anyway. He was fair and transparent.

17.  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.

18.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

11.  The 14-day period[5] for the applicant to appeal the Judge’s decision expired on 14 September 2017[6]. On 24 September 2018, the applicant filed a summons and a supporting affirmation in the Court of First Instance to apply for leave to appeal the Judge’s decision out of time.  Deputy High Court Judge Bruno Chan heard the application on 24 October 2018.  By his decision dated 29 November 2018, he refused the application. 

12.  By summons filed on 4 December 2018, the applicant makes a further application for leave to appeal out of time to this Court.

13.  In considering whether to extend time for appealing against a refusal of 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 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). 

14.  The applicant was late by more than one year, which is a serious delay.  In the Court below, the applicant explained in his supporting affirmation that he did not receive the letter from the Court and was only made aware of the Judge’s decision when the Immigration officer sought to detain and repatriate him.  Acting on the advice of his friends, he mistakenly filed another Form 86, and it was only later on that he realised he should have appealed to the Court of Appeal.  In the present summons and supporting affirmation, the applicant has said nothing about the delay or the reasons for it.  Like Deputy High Court Judge Chan, we do not find the applicant’s explanation satisfactory as he has not explained why the Form CALL-1 and the sealed order, which were sent to the address he provided, did not reach him. 

15.  We turn next to consider the prospect of success of the applicant’s intended appeal, which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal: Re MK HCMP 2609/2016, unreported; Islam Raja Rais v. Director of Immigration HCMP 881/2017, unreported; and Re Gurung Min Bahadur[2018] HKCA 226. 

16.  In the application in the Court below, the applicant did not give any specific ground of appeal, other than making a general assertion that he had good grounds of appeal.  The applicant also did not state any ground of appeal in the present summons and the supporting affirmation.  In the written submission, he gave the following grounds of appeal:

(1)  He has started a family in Hong Kong.  His life will be in danger if he were to return to India.  He should be protected by the BOR 2.

(2)  The Judge failed to assess the actual situation in India, where human rights problems are serious and the police is well known to be corrupt and ineffective.

(3)  The country of origin information (“COI”) used by the Board was based simply on research without any understanding of the cultural context in India.  The country cannot protect the people and state protection does not actually exist.

17.  In our view, what was put forward by the applicant does not constitute viable ground of appeal against the Judge’s decision. 

18.  The Board did not find the applicant’s claim credible and did not accept his claimed fear of harm and danger on being refouled.  Assessment of risk is a matter for the Director and the Board, who are the primary decision-maker.  It is not the function of the Court in a judicial review, or on appeal, to re-assess the non-refoulement claim or to review the Board’s findings.  The complaint that the Judge failed to assess the situation in India is therefore misplaced.  Likewise, the applicant’s complaint about the use of COI by the Board is also misplaced because the Board did not refer to any COI in its decision.  

19.  As for the applicant’s reference to BOR 2 risk, we note this was not covered in the decisions of the Director and the Board.  On the papers before us, it is not known whether the Director had separately assessed the applicant’s claim under the BOR 2 risk ground.  However, given that the applicant’s claim was found to be not credible and that he was considered to have failed to establish there was a real chance he would suffer ill-treatment of any sort, there is no basis to support a case of BOR 2 risk ground.  In any event, if the Director has not made a BOR 2 risk assessment of the applicant’s claim, the applicant may make a request to the Director if he wishes this to be done.       

20.  In summary, the grounds of appeal are unarguable and the applicant’s intended appeal has no prospect of success.  As such, it would be futile to extend the time for him to appeal the Judge’s decision.  Accordingly, we refuse the application for leave to appeal out of time and dismiss the applicant’s summons.

21.  As the 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.

The applicant, unrepresented, acted in person.