Re Rajeev Kumar

CAMP 122/2020

[2021] HKCA 729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 122 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 344/2018)

____________________

____________________

Before:  Hon Barma JA and Au JA in Court

Date of Judgment:  21 May 2021

___________________

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 September 2019 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 20 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 10 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India.  He entered Hong Kong on 19 July 2015 as a visitor and was permitted to remain until 2 August 2015.  He overstayed and surrendered to the authorities on 6 August 2015.  He lodged a non-refoulement claim on 23 May 2016.

3.The applicant’s claim was based on threats from an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [1] to [8] of the CALL-1 Form.

4.By a Notice of Decision dated 10 August 2017 (“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 12 January 2018, the Board dismissed the appeal on 20 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [48] of the Board’s Decision, the Board found that there was no intention to harm the applicant seriously, let alone to kill him.  The applicant was therefore not at risk from any of the proscribed harms.  The Board was also satisfied at [68] that internal relocation would be viable.

The judge’s decision

7.The applicant filed a Form 86 on 5 March 2018 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application dated 5 March 2018, the applicant deposed that:

“I can’t go back to my country at this moment because my problem not yet solved. Please help me to stay in Hong Kong until my problem will be solved. I hope you will give me your kind favour.”

9.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.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 [13] to [17] of the CALL-1 Form:

“13. On 5 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely claimed that his problem in his home country has not been solved and asked that he be allowed to remain in Hong Kong until his problem is solved. As such and in the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. 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 an 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.

15. 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 applicant’s 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.

16. 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.

17. 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

11.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 24 October 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 6 January 2020.

12.By a summons dated 10 August 2020, the applicant renewed his application for an extension of time to appeal before this court.  In the affirmation in support filed on the same day, the applicant contended that:

“…I am not aware of court procedure and time limit for my application…”

13.In his skeleton submissions dated 20 November 2020, the applicant submitted that:

(1)  the Board unlawfully fettered its discretion by refusing his appeal on the ground that he did not satisfy the requirement;

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

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of a procedural error or unfairness;

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

(5)  due to the lack of understanding on what would happen in the hearing, and because the bundle was not provided earlier with interpretation, the applicant was confused as to what was happening;

(6)  even though he answered all the questions honestly, his credibility was doubted.  The applicant believed the Board failed to make proper arrangements to the hearing bundle and the hearing was unfair;

(7)  the Board relied on sources of news that were not officially recognizer or was simply hearsay.  They speculated that it was safe for him to return;

(8)  it was unfair for the judge to not have heard him in person;

(9)  there was a lack of legal representation “throughout [his] application for Court of Appeal”;

(10)  all the authorities had acted in a highly discriminatory and unfair way towards him; and

(11)  the applicant requested for an oral hearing for the appeal.

Discussion

14.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.

15.We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Ignorance of the law on the part of the applicant is not a reasonable excuse for the delay.  We nonetheless go on to consider the merits of the intended appeal.

16.The applicant advanced a number of grounds of appeal based on alleged errors on the part of the Director and the Board, which did not relate to any error on the part of the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  Further, those grounds were not advanced before the judge and it is thus not open to the applicant 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 504, CAMP 524/2018 at §14(4)).

17.As for the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

18.In relation to the ground based on the lack of an oral hearing before the judge, we note that the applicant was not given an oral hearing because he did not request for one in his Form 86.  RHC Order 53 r.3(3) provides that the judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application.  This ground is therefore without merit.

19.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 10 August 2020 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.

The applicant acting in person