RE DAS APURBA KUMAR

CAMP 207/2019

[2020] HKCA 699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 207 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 595 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 11 June 2020 ([2020] HKCA 386), this Court (Yeung VP and Pang JA) refused to grant leave to the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 13 June 2019 in HCAL 595/2017 refusing to grant an extension of time for the applicant to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 28 February 2017 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 20 October 2015 and 13 December 2016 rejecting his non-refoulement claim on all applicable grounds.

2.  By a notice of motion dated 23 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

(1)  The decisions were unreasonable and unfair.  The right to life is protected under Article 2 of the Hong Kong Bill of Rights Ordinance (Cap. 383).  In practice, the right to life is mainly protected by the criminal law and it protects the applicant from extra-judicial killing that he might face if refouled.

(2)  The judges were wrong as a matter of law for not having applied the principle of irrationality in considering the Director’s decision.

(3)  The applicant will face hardship if he were to return to his home country.  The Board has significantly relied on the source of news which is not officially recognized or is simply hearsay.

3.  In compliance with the directions made by the Registrar of Civil Appeals on 24 June 2020, the applicant lodged his written submissions on 7 July 2020.  The applicant’s written submissions in support of this application are identical to his written submissions dated 2 September 2019 that were placed before this Court on appeal.  In gist, he contended that the high standard of fairness is required in determination of torture claim and the Board has acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He cited some related case authorities but without elaborating how the said legal principles and cases may assist or be relevant to his case.  He further referred to section 37ZT of the Immigration Ordinance, Cap. 115 which provides for handling of late filing of notice of appeal but he did not explain why the section was relevant to his own case.

4.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

6.  In our judgment, nothing set out in the notice of motion and the written submissions can constitute as viable ground of appeal on the merit of his claim.  His written submissions merely repeated his earlier submissions which were duly rejected by us. He did not raise any discernible or arguable ground for disturbing our judgment. 

7.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration[2020] HKCFA 22 that an applicant did not need to seek leave under section 14AA of the High Court Ordinance (Cap. 4) (“Section 14AA”) to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the applicant in this instance because:

(a)  the present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the Court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in his appeal against the Judge’s decision of 13 June 2019.  To achieve that he would need to bring an appeal to this Court;

(b)  due to lapse of time, the applicant would need an extension of time to bring an appeal to this Court and if he had made such application, the Court would have regard to the merits of his intended appeal in deciding if extension should be granted; and

(c)  having regard to our views on the lack of merit in his intended appeal as set out at [18] and [19] of our judgment of 11 June 2020, this Court would not grant an extension of time for a futile appeal to be brought.

8.  For the aforesaid reasons and the reasons on the merit of the applicant’s appeal that we gave in our judgment of 11 June 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

The applicant, unrepresented, acted in person.

CAMP 207/2019

[2020] HKCA 386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 207 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 595 OF 2017)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a summons filed on 27 August 2019, the applicant renewed his application for leave to appeal against the decision given by Deputy High Court Judge Bruno Chan (“the Judge”) on 13 June 2019 (“the Decision”) refusing to grant him an extension of time to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board (“the Board”) dated 28 February 2017, in which the Board confirmed the decisions made by the Director of Immigration (“the Director”) on 20 October 2015 and 13 December 2016.

2.  The applicant’s leave application to appeal against the Decision was refused by the Judge on 21 August 2019.

3.  The applicant now renews his leave application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 29 August 2019, the applicant lodged his written submissions (dated 2 September 2019) on 3 September 2019. 

4.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of India.  He entered into Hong Kong illegally on 26 August 2009 and was arrested by the police on 28 August 2009.  He was then referred to the Immigration Department for investigation.  On 29 August 2009, he lodged a torture claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by the terrorist group Maoist communist party (“Maoist”) because he had refused to join the Maoist and had stolen important files from them.    

6.  By a Notice of Decision dated 20 October 2015, the Director decided against the applicant’s claim on BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 13 December 2016, the Director rejected the applicant’s claim on BOR 2 risk.

7.  The applicant appealed to the Board. After the hearing on 15 November 2016 and 12 January 2017, the Board dismissed the appeal on 28 February 2017. For the reasons stated in [88] to [117] of the Board’s decision, it found that the applicant was a highly unreliable witness and that his evidence was unconvincing and not truthful. There was no basis to support the Claim that he would face any risk of harm if refouled. The Board found that the applicant had failed to establish his claims on all applicable grounds.

The Judge’sDecision

8.  On 7 September 2017, the applicant filed his Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision.  The application was made beyond the three months’ time limit.  

9.  The applicant did not provide any ground for seeking relief in Form 86, nor in his supporting affirmation where he merely repeated his claim as follows:

“I have to tell that the petition teams (security bureau) never test my case, because I have many life threats in my country they are belong to two political parties, if I go to my country now sometime I can lose my life too and I was worried and I am living with my wife here and I have a child he was born here in Hong Kong. I petition court now give me the time to submit my supporting document in the future I can submit but they never gave me the time I seeking protection for my wife and child until finish my problem in my country Exhibit 1 (1) page Exhibit 2 (1) page Exhibit 3 (1) page Total 3 pages.” [sic]

10.  The Judge considered the application on paper and by his Decision of 13 June 2019, he refused to grant an extension of time to apply for leave for judicial review for the applicant’s failure to provide good reasons for his delay and that his case was devoid of merit.  The Judge’s reasons for his refusal were duly set out at [14] – [20] of the CALL-1 Form:

“14. The three pages of exhibits to the applicant’s affirmation are respectively the notice from the Board of its decision, a copy of his child’s birth certificate, and a copy of his marriage certificate. The latter two documents had in fact already been submitted earlier before the Director as part of his documents in support of his claim, and the fact of his marriage with a child born in Hong Kong were never disputed and were accepted as part of his claim by both the Director and the Board in their consideration of his claim. As such I fail to see how they would advance his case any further in his intended challenge against their decisions.

15. However, by then the applicant was more than three months late with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

16. The time for filing the Form 86 in the present case expired on 28 May 2017. The applicant failed to do so until more than three months later on 7 September 2017. He has never filed any application for extension of time nor provided any explanation for such inordinate delay, but nevertheless I should proceed to consider whether he has any merit in his intended challenge: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & Anor CACV 63/2015.

17. The crucial question on the merit of the intended application is whether an applicant can show that there is a reasonable prospect of success in persuading the court that there are errors of law or procedural unfairness or irrationality in the decisions of the Director or the Board: see Re Zunariyah[2018] HKCA 14; Re Qadir Sher[2018] HKCA 160; Hounkpedji Messanh v Torture Claims AppealBoard[2018] HKCA 152; Re Rizwan alias Rizwan Gulistan[2018] HKCA 162; Re Lakhwinder Singh[2018] HKCA 246; and Re Masoom Parvez[2018] HKCA 163.

18. Here the applicant as noted above did not put forward any ground in his Form 86, and in his supporting affirmation the only discernable complaint appears to be his claims of not been given time to submit his supporting documents, and that he now wishes to be given further time to do so but without providing any particulars as to what further documents that he would like to submit in support of his claim.

19. The applicant had been made aware of the need to have documents to support his claim since his presentation of his NCF in January 2015 with the assistance of a lawyer when a Notice dated 1 September 2014 from the Immigration Department already set out the time limit for lodging such documents. He also had had further opportunities to do so in his appeal to the Board including at the oral hearings held more than two years later. Even now in his leave application there is no indication of what further documents that he intended to submit.

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, and in the light of the findings by both the Director and the Board on state protection and internal relocation which the applicant has not challenged, I am unable to find any merit in his intended challenge.”

11.  By a summon together with supporting affirmation dated 25 June 2019, the applicant sought leave to appeal against the Decision. The applicant did not provide any draft or proposed grounds of appeal and in his supporting affirmation, he merely repeated his claim that his life would still be in danger in his home country, and that he wanted more time to produce more documents in support of his claim.

12.  By the decision dated 21 August 2019, the Judge refused to grant leave under section 14AA of the High Court Ordinance, Cap. 4.  The Judge found no merit in the applicant’s case as he failed to pinpoint any error of law or procedural unfairness in the decision-making process of the Board and there was also no arguable basis to challenge the Decision.  As there was no prospect of success in the applicant’s intended appeal, the Judge dismissed the summons accordingly.

The Renew Application

13.  By the summons together with supporting affirmation dated 27 August 2019, the applicant renewed the matter before us.  The applicant did not provide any grounds of appeal except by saying in his affirmation that he understood that good grounds of appeal was not necessary at the stage of applying for leave for judicial review. 

14.  In his written submissions, he contended that the high standard of fairness is required in the determination of a torture claim and that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He cited some related case authorities but without elaborating how the said legal principles and cases could assist him or be relevant to his case.  He further referred to section 37ZT of the Immigration Ordinance, Cap. 115 which provides for handling of late filing of notice of appeal but the applicant also did not explain why the section was relevant to his own case.

Legal Principles

15.  In Kwok Cheuk Kin v Leung Chun Ying[2018] HKCA 419, the Court of Appeal held that the refusal to extend time for leave to apply for judicial review is interlocutory in nature. 

16.  According to section 14AA(1) of the High Court Ordinance (Cap. 4), no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted. Section 14AA(4) further provides that no leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard. 

17.  In assessing the prospect of success of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].  For the purpose of this application, we only need to highlight the following principles:

(1)     The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)     An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)     In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds of appeal advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

18.  In our judgment, there is no prospect of success in the intended appeal.  It is clear to us that the Judge was correct in refusing to grant an extension of time for the applicant to apply for judicial review.  The applicant had delayed his application for more than 3 months and in the absence of any good reason for the delay, the Judge was perfectly entitled to hold that the delay was substantial and inexcusable.

19.  The applicant had failed to provide any valid ground of appeal nor pinpoint any error of law or procedural impropriety in the Decision and his intended appeal is bound to fail.  Further, the applicant’s case was dismissed by the Board on the issue of credibility and there was no basis to support that he would face any risk of harm if refouled.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and there was nothing amiss from the Decision.

20.  In the circumstances, it would be futile to extend the time for a hopeless appeal to be brought.  Accordingly, we refuse the application for leave to appeal, and dismiss the applicant’s summons.

21.  Since the application is totally without merit, we further make an order under Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A) that the applicant may not request our determination to be reconsidered at an oral hearing.