RE GURUNG KAPIL

CAMP 192/2019

[2020] HKCA 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 192 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 561 of 2017)

________________________

________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  On 22 January 2020, this Court (Cheung and Chu JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan given on 1 February 2019 refusing him leave to apply for judicial review.     

2.  On 16 March 2020, the applicant filed a notice of motion and an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the direction of the Registrar of Civil Appeals, the applicant has not put in any written submission to support his application.

3.  Having considered the applicant’s notice of motion and affirmation, 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 documents in the case.

4.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Due to the public health risks caused by COVID-19, the registries of the High Court were closed between 29 January and 8 March 2020.  By reason of section 71(1A) of the General Clauses and Interpretation Ordinance, Cap. 1, the time for the applicant to file a notice of motion expired on 9 March 2020 when the High Court registries reopened.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant’s notice of motion is late by a week, which is not very serious.  He explained in his affirmation that since the Chinese New Year he had not been able to file the notice of motion as the court registries were closed.  Having regard to the unusual circumstances since 29 January 2020 and the fact that the applicant is a litigant in person, we are prepared to extend the time for the applicant to file the notice of motion.        

6.  We turn next to consider the merits of the application.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

7.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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.

8.  The notice of motion set out two broad grounds of appeal. First, the Court failed to apply the principle of irrationality in that (i) the decision maker only relied on country of origin information (“COI”) and facts that favour the rejection of the applicant’s claim; the country situation was different from the COI; and (ii) the officer and the court had ignored the overwhelming evidence of violence committed on the minorities.  Second, the Court failed to apply the principle of procedural fairness in that there was no fair assessment of the danger to the applicant and the Director of Immigration and the Torture Claims Appeal Board were required to give reasons for their decisions.       

9.  We are of the view that the points and arguments advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  They relate only to the circumstances of the applicant, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, the proposed grounds were not argued in the appeal before us.  It is not open to the applicant to raise them in this application.  The proposed grounds are in any event vague and not particularised.   

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

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

CAMP 192/2019

[2020] HKCA 68

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 192 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 561 of 2017)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 1 February 2019 refusing him leave to apply for judicial review. The applicant’s previous application for extension of time to appeal was refused by the Judge on 5 June 2019.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of his 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 affirmation filed by 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 16 August 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 27 January 2016 and 7 December 2016 rejecting his non-refoulement claim.

5.  The applicant is an Indian national.  He came to Hong Kong on 29 July 2013 and was given permission to remain as visitor for 14 days.  He overstayed and was arrested by the police on 17 December 2013.  On 19 December 2013, he raised a non-refoulement claim based on his fear of being harmed or killed by his creditor. 

6.  The applicant’s claim was detailed in [6] of the Director’s first decision and summarised by the Judge in [2] to [6] of the Form CALL-1 dated 1 February 2019[1]. The applicant’s case, in gist, is that he took out a loan from a moneylender to start a business.  He was unable to repay the loan and was repeatedly threatened by the moneylender, who was a local gangster with political connections.  To avoid him, the applicant left India and came to 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] ground, and the second decision covers the BOR 2 risk[5] ground.

8.  The applicant’s appeal to the Board was heard on 1 December 2016.  By its decision dated 16 August 2017, the Board dismissed the appeal.  Principally, the Board considered that the dispute was private in nature and, other than the applicant’s assertion, there was no evidence to support the applicant’s case that he and his family had suffered from any harm from the creditor.  The Board also considered internal relocation was reasonably available to the applicant.    

9.  On 29 August 2017, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He raised a total of eight grounds in support of the application as follows:

(1)     The Board failed to carry out sufficient research and inquiry into the country of origin information (“COI”), and cherry- picked COI that support its decision.  It failed to give reasons for preferring some COI over the others.  It also failed to properly assess the applicant’s case in light of the relevant COI.

(2)     The Board erred in assessing the level of risk of harm faced by the applicant to be low.

(3)     The Board erred in failing to consider the concept of extended state acquiescence.

(4)     The Board was wrong to speculate that the applicant had not sustained any injuries and that his experience did not amount to persecution, without taking into account the threats received by his mother and that this would happen to the applicant. 

(5)     The Board wrongly ignored that the wrongdoing and illegal activities of the creditor, which support the applicant’s fear of being harmed or killed by him on his return to India.

(6)     The Board failed to give sufficient weight to the ill-treatment received by the applicant in the past, or to take into account, or put sufficient weight on the relevant COI produced by the applicant in support of his claim.

(7)     The Board was wrong to find the dispute between the applicant and his creditor was a personal money dispute. 

(8)     The Board erred in not accepting the applicant’s claim under the BOR 3 risk ground.

10.  The Judge considered the applicant’s application on paper.  By his decision made on 1 February 2019, he refused to give leave to apply for judicial review, being of the view that the intended judicial review not reasonably arguable and had no realistic prospect of success.  He gave his reasons at [13] to [17] of the CALL-1 Form as follows:

“13. These are however just 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 in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how the adjudicator erred in assessing or finding that the level of risk of harm from KT as low, or what relevancy is the concept of extended state acquiescence to his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14. The applicant’s complaints of the adjudicator’s failure to give sufficient weight of past ill-treatment received by him or that it was wrong to find the threats from KT was a personal money dispute are also clearly without any factual basis, as even on his own case put at the highest, there was never any past ill-treatment from KT prior to the applicant’s departure from India, and that it was clearly a private and personal dispute over money due and owed by the applicant to KT, a fact which the adjudicator was perfectly entitled to find based on the evidence available to the Board.

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 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: see 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. Further, as it has been established by both the Director and the Board 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 [2013] 1 HKC 526.

17. In the premises and having proceeded to consider 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 15 February 2019.  On 20 February 2019, the applicant filed a summons together with an affirmation to apply for extension of time to appeal.  The Judge heard the application on 19 March 2019, and by his decision[6] handed down on 5 June 2019 dismissed the application.  On 13 August 2019, the applicant filed the present application.

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 for five days.  The delay was not substantial.  The applicant explained he did not receive the Form CALL-1 as he was moving home and did not inform the court of the new address in time.  Given this is not a serious delay, we are prepared to accept the explanatory.  We would proceed to consider the prospect of the applicant’s intended appeal, which is a more important consideration.  

14.  The applicant has not set out any proposed grounds of appeal in the summons or the supporting affirmation.

15.  In his written submission, the applicant advanced two arguments.  The first is that high standards of fairness are required considering that the applicant’s life is in jeopardy, his fundamental right not to be subjected to torture is at stake and the decision has the effect of finally disposing of the applicant’s claim rendering him liable to be removed.  Secondly, it was argued that at common law, minimum standards of procedural fairness are required in decision making and decision maker is under a duty to act fairly.  He also complained that the Board had acted in a procedurally unfair manner in dealing with the applicant’s case and did not properly assess his credibility.

16.  In our view, the applicant’s intended appeal has no prospect of success for several reasons.  The written submission only contains general legal propositions.  It fails to show how the legal propositions relate to the applicant’s case.  There was no elaboration of the complaint that the Board acted procedurally unfair.  The reference to section 37ZT of the Immigration Ordinance, which concerns late filing of notice of appeal, has no appreciable relevance to this application. 

17.  We have also reviewed the Board’s decision.  We agree with the Judge’s conclusion that there was no arguable basis upon which leave to apply for judicial review could be granted.   

18.  Given that the intended appeal is unarguable, it would be futile to grant extension of time to appeal. Accordingly, we dismiss the applicant’s summons filed on 13 August 2019.

The applicant, unrepresented, acted in person.