Case Detail

HCAL 1021/2019

[2023] HKCFI 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1021 OF 2019

____________

BETWEEN
	Rai Sukha Dev	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

____________

Before:

Deputy High Court Judge To in Chambers

Date of Decision:

20 February 2023

______________

D E C I S I O N

______________

INTRODUCTION

1. This is the Applicant’s application by summons filed on 29 August 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 28 June 2022 (the “Order”) refusing his application for leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 29 March 2019.

2. Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is one month and seventeen days out of time, which is not insubstantial in the context of a fourteen-day appeal period.

THE LAW

3. In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;
(2)  reasons for the delay;
(3)  prospect of success in the intended appeal; and
(4)  prejudice to the respondent if extension was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4. The Applicant offered no explanation for the delay. In his supporting affirmation, he said he is illiterate, unrepresented, did not know the time limit for appealing and that he had never received any correspondence from the Court regarding the dismissal of his Leave Application. To assist him to make a proper application for leave, this Court gave him specific directions to file a statement stating the date and circumstances when he was first informed that his Leave Application had been refused.

5. In respond, he replied that he did not remember when he received the judgment from the High Court, by which he must mean the Order and Form CALL-1, but it was a few days before he made the present application. At the highest, he only informed the Court that he received the Order late, but not the circumstances under which he received it to account for the late receipt or explain the delay. The delivery service of the Hong Kong Post is usually very reliable. His answer contradicts his supporting affirmation in which he said he had never received the judgment from the High Court. Apart from being incomplete, inconsistent and incredible, his answer failed to explain the reason for the delay.

6. Illiteracy and lack of legal assistance generally is not a valid explanation for the delay. It cannot prevent a layman from filing his notice of appeal setting out what in his mind are valid grounds of appeal and leaving the question of merit to the court to decide in due course.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

7. Insofar as the Applicant also seeks to rely on his illiteracy and lack of legal representation at as a ground of appeal, it is well settled legal principle that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings: see Re Zafar Muazam[3], Re Zunariyah[4], Re Zahid Abbas[5], Re Tariq Farhan[6], and Re Lopchan Subash[7]. The Applicant was legally represented up to the conclusion of the screening interview, though not at the appeal before the Board. In Re Karamjit Singh[8], the Court of Appeal held that the high standard of fairness does not require provision of interpretation service at any time an applicant desired or required. He had the services of an interpreter in preparing his claim, in his screening interview and in the appeal before the Board. Nothing amiss arose from the non-availability of legal representation or language assistance at any stage of the non-refoulement proceedings.

8. In his Summons, the Applicant asked for leave to advance a new sole ground of appeal, but he did not give particulars of this new ground of his intended appeal. In his supporting affirmation, he claimed that the decision by which the Order was made was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country.

9. As already mentioned in paragraph 17 of the Form CALL-1, the Applicant did not put forward any grounds of judicial review. He was invited by this Court’s letter dated 12 April 2022 to file any submission which he would like to make in support of his application, he responded without making any submission. It lies ill in his mouth to complain that the decision was reached unfairly without allowing him an opportunity to clarify his case. Furthermore, as explained in paragraph 16 of the Form CALL-1, the function of the Court in a judicial review is not to hear appeal against the Board’s finding of fact, it only reviews the legality of the Board’s decision in terms of errors of law, procedural unfairness and irrationality in the Decision: see Nupur Mst v Director of Immigration[9]. As explained in paragraphs 17 and 18 of the Form CALL-1, in the absence of any proper ground of application, the Applicant’s Leave Application had to be considered by this Court undergoing a rigorous examination of the Board’s Decision with anxious scrutiny for errors of law, procedural irregularity and irrationality in the Decision. For reasons as explained in paragraphs 19 and 20 of the Form CALL-1, this Court could not find any. Hence, this Court refused his Leave Application.

10. By his intended appeal, the Applicant is in effect seeking to challenge this Court’s finding that the Board’s Decision has not been tainted by any of the above vitiating factors which is the sole ground for which this Court may review the Decision of the Board; but he has not provided any basis for challenging this Court’s decision. Thus, his intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

11. The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge which has no prospect of success to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

12. The Applicant has no valid explanation for the not insubstantial delay. His intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.

( Anthony To )
Deputy High Court Judge

The Applicant is not represented

[1] CAMP 64/2020; [2020] HKCA 844

[2] CACV 63/2015

[3] CACV 2/2018, (unreported) 23 March 2018

[8] CACV 78/2018

[9] [2018] HKCA 524 at para 14(1)

HCAL 1021/2019

[2022] HKCFI 1925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1021 of 2019

BETWEEN
	Rai Sukha Dev	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or
consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and
2. Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his decision dated 29 March 2019. He named the Director as the sole proposed respondent and identified the decision sought to be reviewed by the aforementioned date. In his supporting affirmation filed on the same day, he repeated his intention to apply for judicial review of the decision of the Immigration Department, but he did not identify the decision by date or any other means.

2. The Applicant entered Hong Kong on 18 March 2014 as a visitor and overstayed since 25 March 2014. He surrendered to the authorities on 24 June 2015 and made a non-refoulement claim on 18 September 2015. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 30 April 2018 (the “Notice”), the Director rejected his claims under all four applicable grounds. He appealed to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notice. His appeal was dismissed by the Board via its decision dated 29 March 2019 (the “Decision”).

3. The subject matter of the Applicant’s application for judicial review is the decision of the Director dated 29 March 2019. The Director had made no decision bearing that date relating to the Applicant, but the Board had. Furthermore, while the decision of the Board is reviewable by judicial process, the decision of the Director in the Notice is not because there are established statutory procedures of appeal to the Board under section 37ZR of the ImmigrationOrdinance and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[5]. Under the above circumstances, it is manifestly obvious that the Applicant had mistaken the identity of the Board and the Director, but his intention was to seek judicial review of the Decision of the Board. Accordingly, leave was granted to amend the Form 86 by making the Board the proposed respondent, the Director an interested party and the Decision the subject matter of the intended judicial review.

4. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he will be harmed or killed by his younger brother Rai Basu (“his brother”) because of a monetary dispute.

6. The Applicant is Nepali national, now aged 43. He had received 11 years of education and had 19 years of working experience, including 9 years in Doha, Qatar. He was married in 1998 and has one daughter. He and his family resides in Kathmandu, Nepal before he left the country.

7. The Applicant worked as a labourer in a construction company in Doha between 2005 to 2014 earning about 25,000 Nepali Rupees (“NPR”) per month. He remitted about 25% of his salary to his wife and the rest to his brother for investing in land in Nepal on their behalf. The Applicant, his wife and daughter lived with his brother and his parents in Nepal. His brother did not have a job. His responsibility was to take care of the household and to manage the Applicant’s investment.

8. Towards the end of 2013, the Applicant agreed to his brother’s suggestion to buy a piece of land in the Bhopur District in Nepal for around NPR 1.5 to 2 million. The land was to be purchased in his brother’s sole name but each of them would have 50% ownership in the land when the Applicant returned to Nepal.

9. The Applicant returned to Nepal in January 2014. But his brother did not transfer any interest in the land to the Applicant. The Applicant kept chasing his brother about his interest in the land. Whenever they discussed about the matter, they ended up in a fight.

10. His brother had on a number of occasions threatened to hire gangsters to kill the Applicant. One night in mid-February 2014, his brother and a group of men demanded the Applicant and his family to leave his parents’ house otherwise they would kill him. As the Applicant was worried about his safety and did not wish to cause trouble to his parents, he and his family moved to live with his mother-in-law.

11. However, while staying in his mother-in-law’s home, the Applicant received calls from the group of men claiming that they would locate him soon. After that, his brother called him and told him that he knew his whereabouts and would come with his group to visit him soon. The Applicant believed his brother was concerned that he would file a case against him seeking severance of the land.

12. After staying with his mother-in-law for about a month, the Applicant took the advice of his wife and made arrangement to leave the country. The travel agency told him the fastest way to leave Nepal was to fly Hong Kong. He flew to Hong Kong on 18 March 2014.

The finding of the Board

13. The Applicant testified before the Board and gave an account which is significantly different in fundamental aspects from his account in the NCF. The centrepiece of his case as stated in his NCF is that his brother bought the land for him and held it in his brother’s name with an undertaking to transfer 50% of the interest in the land to the Applicant on the Applicant’s return from Qatar; but his brother reneged on that undertaking and wanted to kill the Applicant for fear that the Applicant will seek severance of the land. However, his testimony before the Board was that his brother had not purchased any land but kept his money which the Applicant remitted to him. Another inexplicable inconsistency is that in the NCF he said the Applicant had kept the receipts evidencing transfer of his money to his brother in his mother’s house but did not know if they were still there after he left, which contradicted his evidence before the Board that he had thrown away all the receipts. The Board found the discrepancies are too numerous and impossible to be reconciled as to render the Applicant’s evidence unreliable.

14. The Board found the Applicant’s case vague and unbelievable whether according to his evidence in the NCF or before the Board. The Board accepted his personal background, that there might be some monetary dispute between the Applicant and his brother but not any fighting. All the other matters, including the threats by his brother and his people were not accepted. The Board found the dispute and matters relating thereto were and are confined to the Applicant’s local area. The Board noted that the Nepali authorities had never denied the Applicant protection, it was the Applicant’s own choice not to seek protection from the authorities. There was nothing in the evidence that suggest that the Nepali government was involved in his dispute with his brother or that they would assist his brother to track him down so as to harm him; and that his brother and his people were so powerful and influential as might or will be able to locate him throughout Nepal.

15. Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board was not satisfied that the Applicant has proved his entitlement to protection under any of the applicable grounds under the USM and dismissed his appeal.

Legal principles applicable to judicial review

16. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

17. The Applicant did not put forward any grounds in his Form 86. In his supporting affirmation, he said that he “would like to reject and review the decision” without giving any supporting reasons. The Applicant was invited by letter dated 12 April 2022 to file, inter alia, any submission which he would like to make. The letter was sent to his up to-date address as obtained from the Immigration Department. He responded without making any submission.

18. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Nepal.

Discussion

19. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims.

20. The Applicant’s claim is founded on his alleged threat by his brother to kill him. He gave two different irreconcilable accounts. The Board carefully weighed the evidence and assessed his credibility. It found him incredible, his evidence unreliable and his case inherently improbable. It did not accept his evidence about the threat. As the Applicant bore the burden of proving his claims, such a finding was fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM. Basically, the Applicant failed to discharge his burden of proving his fears and risks. This conclusion was further supported by availability of internal relocation. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

21. For the above reasons, leave was granted to amend the Form 86 in manner as mentioned in paragraph 3 above; but the application for leave to apply for judicial review as amended was refused.

Dated 28^th day of June 2022.

	( Allen LEE )
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notesfor the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 28/6/2022 Rai Sukha Dev Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/6/2022 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 11574/18/5/159/N448 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 1074/18 (formerly RBCZ 13452/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5][2018] HKCA 549

[6][2018] HKCA 524 at para 14(1)

RAI SUKHA DEV v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

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Files (2)

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;