Case Detail

CAMP 77/2020

[2020] HKCA 967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 77 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 732 OF 2017)

________________________

BETWEEN
	Chetry Gokul	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Judgment: 27 November 2020

____________________

J U D G M E N T

____________________

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

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 30 October 2020 ([2020] HKCA 873) refusing to grant leave to appeal out of time against the decision of Deputy High Court Judge Woodcock dismissing his application for leave to apply for judicial review concerning his non‑refoulement claim. The applicant is a national of India. His claim was made on the basis that he would be harmed or killed by members of a terrorist group called the United Liberation Front of Assam if he were to return to India because he refused to join them. He filed his Notice of Motion on 4 November 2020.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 6 November 2020 that the applicant should lodge written submissions in support of his Notice of Motion on or before 18 November 2020 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction. The applicant did not lodge any written submission as directed. As the time for the compliance with the said direction has expired, we would determine this application without a hearing on the basis of the documents filed in court.

3. The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ Woodcock. His application was late by nearly fifteen months. His application was refused by Deputy High Court Judge K W Lung on 26 June 2020 ^{^[1]}. He renewed his application to the Court of Appeal for extension of time to appeal on 2 July 2020.

4. On 30 October 2020, the Court of Appeal refused to extend time to appeal against the decision of DHCJ Woodcock because the applicant does not have any prospect of success in the intended appeal.

5. In the Notice of Motion filed on 4 November 2020, the applicant set out the following grounds of appeal:

(1) The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration, by which the Director and the Adjudicator of the Torture Claims Appeal Board are required to give reasons justifying their decisions.
(2) The judges were wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director and the Adjudicator.
(3) His life is in danger in his country so he cannot take a risk of his life. The actual condition is different from the situation mentioned in the country of origin information. The officers and courts prefer to ignore the overwhelming evidence of violence towards minorities, searching for unrealistic silver lining.
(4) The judges did not apply the law properly.

6. Under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, 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.

7. The applicant has not shown any merits in his intended appeal as his grounds of appeal are lacking in particulars and not supported by evidence. In particular, he has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application. He has also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

8. For the above reasons, we dismiss the Notice of Motion filed on 4 November 2020 for leave to appeal to the Court of Final Appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal;

(Carlye Chu)
Justice of Appeal

The Applicant, acting in person.

[1] [2020] HKCFI 1261

CAMP 77 /2020

[2020] HKCA 873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 77 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 732 OF 2017)

________________________

BETWEEN


	Chetry Gokul	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Chu JA in Court

Date of Written Submission:	25 August 2020
Date of Judgment:	30 October 2020

____________________

J U D G M E N T

____________________

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

1. On 9 August 2018, Deputy High Court Judge Woodcock (“DHCJ Woodcock”) refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim^{^[1]}.

2. The applicant issued a summons on 4 December 2019 seeking leave to appeal against that decision out of time, as the 14-day period to file his appeal ended on 14 September 2018 (after discounting the month for August 2018 on account of the Court’s summer vacation). He also sought leave to advance a new ground of appeal. His summons was heard by Deputy High Court Judge K W Lung (“DHCJ Lung”) on 23 January 2020. On 26 June 2020, DHCJ Lung refused to grant leave to the applicant to appeal out of time as the applicant failed to show he had any reasonable prospect of success in his intended appeal^{^[2]}.

3. On 2 July 2020, the applicant took out this renewed application in the Court of Appeal for leave to appeal out of time.

4. The applicant is a national of India. He is 30 years old. He claimed to have entered Hong Kong illegally on 7 November 2015 and was arrested by the police on the same day. He raised a non-refoulement claim on 9 November 2015. His claim was made on the basis that he would be harmed or killed by members of a terrorist group called the United Liberation Front of Assam (“ULFA”) if he were to return to India because he had refused to join them.

The Director’s decision

5. By a Notice of Decision dated 29 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including BOR 2 risk^{^[3]}, BOR 3 risk^{^[4]}, torture risk^{^[5]} and persecution risk^{^[6]}.

The Board’s decision

6. The applicant appealed against the Director’s decision to the Board. The Board conducted a hearing on 28 August 2017.

7. The Board found there is no merit in the applicant’s claim as he had never been inflicted with any injuries or threat by the ULFA members. The Board further considered that state protection would be available to the applicant in India and internal relocation is a viable option. Therefore, the Board dismissed the applicant’s appeal on 1 September 2017.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 6 October 2017 to seek leave to apply for judicial review against the decision of the Board. His grounds for judicial review may be summarized as follows:

(1)  the Board failed to maintain high standard of fairness in failing to ensure that the hearing bundle and skeleton argument of the Director were served on the applicant within a reasonable time and in failing to arrange an interpreter to interpret the hearing bundle and skeleton submission to the applicant;
(2)  the Board erred in approaching the matter by simply trying to see whether he could find fault with the decision of the Immigration Officer;
(3)  the Board failed to consider the conditions of the applicant’s country of origin; and
(4)  the Board failed to take into consideration that the applicant was not legally represented after the Director’s decision and has insufficient legal knowledge.

The decision of DHCJ Woodcock

9. The judge held that the applicant failed to show any error of law, procedural unfairness or failure to adhere to high standard of fairness by the adjudicator. Therefore, on 9 August 2018, the judge refused to grant leave to the applicant to apply for judicial review.

Grounds of the intended appeal

10. In the applicant’s written submissions, he stressed that high standards of fairness are required in the determination of a torture claim and submitted that the adjudicator had acted in a procedurally unfair manner without properly assessing his credibility^{^[7]}.

Analysis

11. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order of DHCJ Woodcock was made on 9 August 2018. The applicant took out a summons on 4 December 2019 and was late for nearly fifteen months. The delay is very substantial.

13. Before DHCJ Lung, the applicant explained that he had not receive the decision of DHCJ Woodcock on time but he confirmed he had received the decision^{^[8]}. His explanation cannot justify such a lengthy delay. In these circumstances, he must show a real prospect of success on the merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14. In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

15. 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. Assessment of evidence and Country of Origin Information 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.

16. 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 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.

17. The applicant’s ground concerning the Board’s failure to properly assess his credibility was not raised in his previous leave application. The Court of Appeal would not entertain such new ground as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below^{^[9]}.

18. In any event, his grounds are just bare assertion without particulars and evidence in support. In his submission before DHCJ Lung, he acknowledged that he did not know anything wrong in the decision^{^[10]}. The applicant failed to demonstrate that DHCJ Woodcock had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19. For the above reasons, the applicant does not have any prospect of success in the intended appeal against the decision of DHCJ Woodcock. We therefore dismiss the summons filed on 2 July 2020 for extension of time to appeal against that decision.

(Susan Kwan)	(Carlye Chu)
Vice President	Justice of Appeal

The Applicant, acting in person.

[1][2018] HKCFI 1763

[2][2020] HKCFI 1261

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] The ground concerning the Board’s failure to properly assess his credibility was not raised in the previous leave application.

[8] See record of the hearing on 23.1.2020.

[9]Re Qadir Sher[2018] HKCA 160 at §11

[10] Record of the hearing on 23.1.2020 & [2020] HKCFI 1261 at §9

CHETRY GOKUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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