CAMP 112/2021
[2021] HKCA 1664
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 112 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 812/2018)
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| RE: | AKHTAR JAVED | Applicant |
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Before: Hon Barma JA and Au JA in Court
Date of Judgment: 15 November 2021
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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. This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 9 September 2020 refusing leave to the applicant 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 (“Board”) dated 27 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 24 October 2016 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of India. He entered Hong Kong on 20 February 2008 as a visitor and was permitted to remain until 5 March 2008. He overstayed and was arrested on 10 March 2008. He lodged a non-refoulement claim on 21 March 2008.
3. The applicant’s claim was based on threats from his former business partner. The details of the applicant’s claim have been summarised by the judge at [1] to [4] of the CALL-1 Form.
4. By a Notice of Decision dated 24 October 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 22 February 2018, the Board dismissed the appeal on 27 April 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection. At [45] of the Board’s Decision, the Board found that the applicant’s case was not credible.
The judge’s decision
6. The applicant filed a Form 86 on 9 May 2018 seeking to judicially review the Board’s Decision, which contained no ground for seeking relief. In the affirmation filed on the same day, the applicant exhibited the relevant documents without giving any ground.
7. The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.
8. 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 [10] to [13] of the CALL-1 Form:
“10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 in their decisions 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: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.
11. In the Applicant’s case, 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 his 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 & Anor [2013] 1 HKC 526.
12. 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.
13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”
Application for extension of time to appeal and grounds for appeal
9. Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal. He failed to do so. By a summons dated 23 October 2020, the applicant sought leave to appeal out of time. His application was dismissed by the judge on 30 March 2021.
10. By a summons filed on 12 April 2021, the applicant renewed his application for an extension of time to appeal before this court. In the summons he stated that:
“…As a lay person I would like to appeal…the Learned Judge was wrong in accepting the adjudicator’s finding the only fact-established is that the Learned Judge had failed to consider all applicable grounds of non-refoulement claims and in particular non-refoulement of the grounds of risk of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance. So its my kindly request to the court to please allow me to appeal again.”
11. In the affirmation in support filed on the same day, the applicant reiterated the matters raised in the summons.
12. In his skeleton submissions lodged on 8 June 2021, the applicant submitted that the Board acted in a procedurally unfair manner and failed to properly assess his credibility. He also referred to a number of cases on high standards of fairness, such as ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, without explaining the relevance of those cases to his appeal.
Discussion
13. Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.
14. The applicant did not offer any explanation for the delay in bringing the intended appeal. We nonetheless go on to consider the merits of the intended appeal.
15. The applicant did not raise any ground in the Form 86. The grounds put forward in the summons dated 12 April 2021 and the written submission were therefore new grounds raised on appeal. This court has repeatedly held that it is not open to an applicant to raise new matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst[2018] HKCA 504, CAMP 524/2018 at §14(4)). In any event the grounds mentioned in the summons are incomprehensible.
16. Further, this court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker. On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review. No such errors have been identified here.
17. We therefore 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 12 April 2021 is dismissed accordingly.
| (Aarif Barma) | (Thomas Au) |
| Justice of Appeal | Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the 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.
[3] 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.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.