RE AHMED SAMIR AND OTHERS

CAMP 94/2019

[2021] HKCA 448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 94 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 919/2017)

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J U D G M E N T

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

1.  On 23 April 2020, this court (Barma JA and Au JA) handed down a judgment dismissing the applicants’ application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 25 January 2019 refusing leave to the applicants to apply for judicial review. The applicants had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing their appeal from the decision of the Director of Immigration rejecting their non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicants subsequently applied, by a Notice of Motion dated 12 May 2020, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicants explained why it is unsafe for them to return.  They identified a number of errors allegedly committed by the Board, many of which had already been advanced as grounds for judicial review in the Form 86.  They contended that the court ignored “the overwhelming…evidence of this violence towards minorities searching for unrealistic silver lining”.  They submitted that the lockdown in India due to the coronavirus has made it less desirable for them to return.  They claim that the matters involved in the appeal are of significant public importance, particularly with regard to the standard and approach in the assessment of evidence and credibility with non-refoulement claims.  They further contended that:

“The Court of First Instance failed to discharge its duty to comprehensively consider the lawfulness or fairness of decision-making, as is its role in judicial review.

Each of the points listed above addresses Peter consideration in the objective assessment of risk to prevent refoulement to a risk state. The matters are of significance as they pertain to the life and freedom of individuals within Hong Kong.

There are fundamental errors going to the heart of the appropriate determination of protection claims in Hong Kong, it is therefore of public importance such as to justify the consideration of the Court of Appeal”

4.  The applicants lodged a written submission in support of the application on 12 June 2020.  In the written submission, the applicants repeated the matters raised in the Notice of Motion. 

5.  Having considered the applicants’ Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicants’ application on the basis of the documents filed.

6.  The matters stated by the applicants do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicants have failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters they have raised.  

7.  Most of the grounds raised in the Notice of Motion and the written submission are new grounds which have never been raised in the application for extension of time to appeal.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally 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.  In any events, all of the grounds raised in the Notice of Motion and the written submission are vague and lack particulars.  In our view, none of those grounds is reasonably arguable before the Court of Final Appeal.

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

10.  For these reasons, the Notice of Motion dated 12 May 2020 is dismissed.

The applicants acting in person

CAMP 94/2019

[2020] HKCA 223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 94 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 919/2017)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 25 January 2019 refusing leave to the applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 18 October 2017 dismissing the applicants’ appeal against the decision of the Director of Immigration dated 28 April 2017 rejecting the applicants’ non-refoulement claim.

Background

2.  The first three applicants are respectively husband, wife and their elder son who are nationals of India.  They arrived in Hong Kong on 8 December 2015 as a family with permission to remain as visitors for a defined period, but they overstayed and subsequently surrendered to the Immigration Department.  The 4^th applicant was born on 17 August 2016 in Hong Kong.  The applicants lodged non-refoulement claims on 22 March 2016 and 17 October 2016. 

3.  The applicants’ claim was based on threats from a man identified as FH who was said to be politically well-connected.  They claimed that FH asked for extortion money from the 1^st applicant.  The details of the applicants’ claim have been summarised by the judge at [2] to [8] of the CALL-1 form.

4.  By a Notice of Decision dated 28 April 2017 (“the Director’s Decision”), the Director decided against the applicants’ claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicants appealed to the Torture Claims Appeal Board.  After a hearing on 4 September 2017, the Board dismissed the appeal on 18 October 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  Although at [95] of the Board’s Decision, the Board held that it was not satisfied that the accounts by the 1^st and 2^nd applicants had been entirely credible, the Board largely accepted their evidence as to the allegation of extortion and threat of harm from FH in their home town.  The Board also accepted that state protection would not be effective.  However, the Board was satisfied that internal relocation would be viable (at [110]), and therefore dismissed the appeals.

The judge’s decision

7.  The 1^st and 2^nd applicants filed a Form 86, on behalf of themselves and the 3^rd and 4^th applicants, on 21 November 2017 which contained the following grounds for judicial review:

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

(2)  that the Board acted in a procedurally unfair manner in dealing with their appeal;

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

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

(5)  there was unreasonable delay between the screening interview and the Director’s Decision.  Due to such delay, the applicants were not able to retrieve related evidence from India to support their appeal for the non-refoulement claim;

(6)  that it was procedurally unfair or unreasonable to give them the hearing bundle only shortly before the appeal hearing with all the documents in English without translation, that there was insufficient time for them to prepare for their appeal;

(7)  that the Director and the Board misdirected on the law by failing to consider and assess with due diligence of their claims under the applicable grounds; and

(8)  that the Director and the Board failed to take into account relevant COI or cherry-picked the facts in their consideration of their claim.

8.  In the affirmation in support of the leave application dated 21 November 2017, the 1^st and 2^nd applicants gave an overview of the events leading to their claim.  They claimed that owing to the late provision of hearing bundle and the lack of legal and language assistance, the applicants did not understand what was happening during the Board hearing.

9.  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 give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [19] of the CALL-1 form:

“14. These are however mostly just broad and vague assertions of the applicants 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 Director or the Board had erred in their decisions, or in what way did they fetter their discretions, or in what way were their decisions unfair or unreasonable in the public law sense, or how they failed to take into account of relevant COI or being selective or improperly rely on irrelevant COI or cherry-picked the facts in the consideration of their claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicants, nor do I find any basis or merit in any of them.

15. The only complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their 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 them insufficient time to prepare for their appeal.

16. Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants 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 their NCF, records of their screening interviews and the Director’s decision should be well familiar to both A1 and A2 as they had earlier all being already made available to them when they still had legal representation, whilst their NCF were completed on their own instructions with legal assistance, and that at their oral hearing neither A1 nor A2 raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

17. 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 applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18. 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 applicants’ claim.

19. For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

10.  According to the court’s records, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicants on 25 January 2019.

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicants had 14 days to lodge an appeal.  They failed to do so within that period.  By a summons dated 11 March 2019, the applicants sought leave to appeal out of time.  Their application was dismissed by DHCJ Bruno Chan on 7 May 2019.

12.  By a summons dated 17 May 2019, the applicants renewed their application for an extension of time to appeal before this court.  In the affirmation in support of the same date, the 1^st and 2^nd applicants explained that they did not understand English.  They did not know the time limit for filing an appeal and their friend erroneously advised them that they had 3 months to lodge an appeal.  They also advanced the following grounds of appeal:

(1)  the applicants could not be expected to understand the hearing bundle for the Board hearing.  The judge wrongly concluded that the applicants’ confusion at the hearing was due to their own memory and inability to answer questions properly but not the lateness in providing the bundle;

(2)  the applicants were not certain if the interpretation had been accurate.  This led the Board to wrongly conclude that they lacked credibility.

13.  In their skeleton submissions dated 4 June 2019, the applicants repeated the grounds for judicial review.  They submitted that the judge’s decision “fell far short of the ‘rigorous examination’ and anxious scrutiny of the decision-making process and the reasons by which the decision-maker has reached his decision”.  They also made the following complaints:

(1)  the manner in which the Board disregarded the certification that confirmed the 1^st and 2^nd applicants did not hold any position as CPI-M was unlawful and procedurally unfair.  The applicants gave several reasons to challenge this finding of fact;

(2)  the Board’s approach to evaluating key evidence was unfair;

(3)  the evidence was mischaracterized, which is procedurally unfair;

(4)  because the Board’s decision failed to consider the Country or Origin information in relation to country condition, it was procedurally unfair; and

(5)  the judge failed to scrutinize the Board’s reasoning in evaluating the certificate showing the position as campaign secretary of the Bhaggkul branch.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

15.  We are of the view that the applicants have not provided any reasonable explanation for their delay in bringing the intended appeal.  Ignorance of the law on the part of the applicants is not a reasonable excuse for the delay.  Nonetheless, we will go on to consider the merits of the intended appeal.

16.  With the exception of the complaints relating to the late provision of the hearing bundle, the matters identified in the affirmation dated 17 May 2019 and the skeleton submissions were not raised as a ground for judicial review before the court below.  It is thus not open to the applicants to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst[2018] HKCA 524, CAMP 54/2018 at §14(4)). 

17.  As for the alleged late provision of the hearing bundle at the hearing before the Board.  The judge has dealt with this adequately at [15] - [16] of CALL-1 form.  

18.  More importantly, it is clear from the Board’s decision, and was recognised by the judge that the difficulty facing the applicants was that internal relocation is viable.  In our view, the Board and the judge were perfectly entitled to reach their conclusion on the material before them.

19.  In these circumstances, we do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 17 May 2019 is dismissed accordingly.

20.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.