RE CHOPRA AMIT

CAMP 253/2021

[2022] HKCA 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 253 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1794 OF 2018)

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________________________

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J U D G M E N T

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

1.  On 19 April 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Barma and Au JJA)  judgment of 4 March 2022 (“the Judgment”)  ([2022] HKCA 341). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 30 June 2020, by which the Deputy Judge refused his application for leave to apply for judicial review ([2020] HKCFI 1373).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  Pursuant to section 24(2)  of the HKCFAO an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the original deadline for the applicant to seek leave to appeal against the Judgment fell on 1 April 2022.  Due to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022.  Accordingly, the applicant was one week late in taking out his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another[2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“I am the applicant herein. In the order give to the Court there i some error in my decision Decision maker just relied on COI information and my previous facts which were favor on reject my claims. Actual life occur different situation the mentioned COI information Immigration officer and Hong Kong High Court’s prefers to ignore the overwhelming of the evidence of the violent towards minorities searching for unrealistic silverlining The decision is betray bias and formula approach unlikely fairly access the danger of my life and ele calcute to reject my claims Also I am requested to Court I don’t have legal representatives could you please provide me and consider my real situation and safe my life’s as a human being Bundle of thanks” (sic)

7.  In his supporting affirmation filed on 19 April 2022, the applicant further stated:

“I am the applicant herein I am requested to Honourable Court I am late filing because Hong Kong High Court closed till 11 April 2022 that’s why I am deley Apply my Notice of Motion I am requested to Court could you please accept my application bundle of thanks.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 29 April 2022.  In those submissions, he asserted that the Board’s Decision was determined without a hearing and was Wednesbury unreasonable or irrational and that the Board failed to give any or had given insufficient reason for dismissing the appeal without hearing.  He further asserted that the Board failed to make sufficient enquiry before finalising the decision and he could not go back to India because his life would be in great peril.  He also claimed that the same level of threat still existed in India and he feared to return to his home country “because of domestic violence or sexual assault that [he] experienced there”.

9.  While a delay of one week in taking out his application is not substantial, in our view, his application is wholly devoid of merit.  The matters raised in his Notice of Motion and written submissions are essentially a mere regurgitation of those submissions he previously made before this Court: see [14] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3]. His arguments had already been fully considered and rejected by this Court at [15] - [22] of the Judgment and the applicant failed to identify with specific particulars any error in the Judgment.  As such, nothing set out in the Notice of Motion can be construed as viable ground of appeal to the Court of Final Appeal.

10.  Further, as noted at [7] of the Judgment, the Board held an oral hearing on 6 March 2018 and the applicant attended the same with his legal representatives and gave evidence.  The Board also gave detailed reasons for its decision by way of its written determination dated 17 August 2018.  Accordingly, his assertions are wholly misplaced.

11.  In any event, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal. Accordingly, the Notice of Motion filed on 19 April 2022 is dismissed.

The applicant acting in person

CAMP 253/2021

[2022] HKCA 341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 253 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1794 OF 2018)

____________________

____________________

_______________

J U D G M E N T

_______________

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

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“DHCJ Lung”) dated 30 June 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 1373). An earlier application for extension of time to appeal was refused by Deputy High Court Judge P Li (“DHCJ Li”) on 29 June 2021 (“the EOT Decision”) ([2021] HKCFI 1778).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 17 August 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 4 March 2016 and 29 December 2017 rejecting his claim for non-refoulement protection (collectively “the Director’s Decisions”).

3.  Having considered the papers, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of India.  He entered Hong Kong as a visitor on 30 November 2004 and was allowed to stay until 7 December 2004.  He overstayed and applied for extension of stay but was rejected.  He subsequently committed a number of offences and was imprisoned.  He made a torture claim on 17 December 2007 which was rejected by an immigration officer on 20 August 2013.  He lodged a non‑refoulement claim on 17 September 2013 on the basis that he will be harmed or killed by the boss and an employee called Sonu of a money lending company because he defaulted in the repayment of his loan owed to the company.  Details of the applicant’s claim were summarised by DHCJ Lung at [4] ‑ [6] of the Leave Decision.

5.  By a Notice of Decision dated 4 March 2016, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk^[1] including BOR3 risk^[2], and persecution risk^[3].

6.  By a Notice of Further Decision dated 29 December 2017, the Director further considered and rejected the applicant’s non-refoulement claim under BOR2 risk[4].

7.  The applicant then appealed against the Director’s Decisions to the Board.  He attended an oral hearing before the Board on 6 March 2018 with legal representation and gave evidence.  The Board dismissed his appeal on 17 August 2018 and confirmed the Director’s Decisions. The Board doubted the applicant’s credibility and did not consider him a reliable witness.  Having assessed the evidence, the Board considered that the applicant failed to substantiate his case on the applicable grounds and that state protection and internal relocation would be available to him upon his return to India.  Accordingly, the Board dismissed his appeal.

The Leave Decision

8.  On 31 August 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  In his supporting affirmation, he contended that both the Board and the Director did not properly assess his claim.  He complained about the lack of legal assistance in his application for leave to apply for judicial review as well as the lack of language assistance in his BOR2 risk assessment.  As the applicant was absent in the hearing of the leave application before DHCJ Lung on 21 November 2019, DHCJ Lung considered his application on paper.

9.  By the Leave Decision, DHCJ Lung dismissed his application for leave to apply for judicial review for the following reasons:

“DISCUSSION

14.       The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

15.       In Nupur Mst v Director of Immigration[2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.       The rhetorical questions should have been put to the applicant for his answers. However, I do not find that those questions relate to the finding of the facts by the Board. Nor would they affect the option of internal relocation open to him.

17.       The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

18.       I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.”

The EOT Decision

10.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 6 November 2020, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was over 3½ months late with his intended appeal.  In his supporting affirmation, he claimed that he did not receive the letter from the High Court and only knew about the Leave Decision from his immigration officer when he reported to the Immigration Department.

12.  By the EOT Decision, DHCJ Li refused to grant the applicant extension of time to appeal.  DHCJ Li considered a delay of 3½ months as substantial and was not satisfied that the applicant had provided any good reason for his serious delay.  The applicant must also bear the consequence of failing to update his address with the Court.  Having considered the Board’s Decision and the Leave Decision, DHCJ Li considered that there was no merit in the applicant’s intended judicial review and dismissed his application for extension of time to appeal.

The Present Application

13.  By a summons and supporting affirmation both dated 13 July 2021, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, he claimed that his life would be in danger and great peril in his home country without giving any elaboration or specific particulars in support.

14.  Pursuant to the directions given by the Registrar of Civil Appeals on 13 July 2021, the applicant lodged his written submissions on 26 July 2021.  In his written submissions, he claimed that the same level of threat still existed in India and he feared to return to his home country “because of domestic violence or sexual assault that [he] experienced there”.  He also asserted that the Board failed to make sufficient enquiry before finalising its decision and failed to inquire from the Indian authorities.  He again repeated that his life would be in great peril if he went back to India and that he had no faith in the authorities.  He also cited section 37ZO of the Immigration Ordinance, Cap 115 but did not state how the provision was relevant to his case.  He further requested for his claim to be assessed with legal and interpretation assistance provided by the duty lawyer service.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif[2019] HKCA 299 at [13].

16.  We consider the applicant’s delay of over 3½ months to be very substantial and that the applicant has failed to provide any cogent explanation for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz[2021] HKCA 636 at [15]; Re Ansar Muhammad[2018] HKCA 227 at [8]; Re MA[2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the decision of the DHCJ Lung and will only consider reversing that decision if an applicant can demonstrate that the DHCJ Lung made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration[2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: ReFarrukh Zaib[2020] HKCA 408 at [28].

18.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper ground of appeal or errors committed by DHCJ Lung.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

19.  In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  As repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: 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].

20.  Although he cited section 37ZO of the Immigration Ordinance, Cap 115, he did not elaborate how it was relevant to his case and his present application.

21.  The applicant’s request for his non-refoulement claim to be assessed with legal and interpretation assistance by the Duty Lawyer Service is also misplaced as he already had both legal and interpretation assistance provided by the Duty Lawyer Service throughout the assessment of his non-refoulement claim before the Director and the Board.

22.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and his summons dated 13 July 2021 dismissed.