Re Vishpal

CAMP 578/2021

[2022] HKCA 295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 578 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1433 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 19 March 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 12 July 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 29 November 2016 rejecting the applicant’s non-refoulement claim.

2.On 14 December 2021, the Judge refused to extend the time for the applicant to appeal against his decision of 19 March 2021.[2]

Background

3.The applicant is an Indian national. He last arrived in Hong Kong via Mainland China in April 2015 but was arrested by the police on 30 April 2015 on suspicion of being an illegal immigrant, and was referred to the Immigration Department on 1 May 2015. He lodged his non-refoulement claim on 2 May 2015.

4.The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by Naresh Kumar and his friends and relatives, because he had witnessed a murder by Naresh and given a witness statement to the police about it. The factual background of his claim was summarized at paragraphs 8 to 23 of the Board’s decision.

5.By notice of decision dated 29 November 2016, the Director assessed the applicant’s claim with reference to all applicable grounds and determined it against him. The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk[5] and BOR 2 risk.[6]

6.The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 2 March 2018, during which the applicant gave oral testimony and answered questions from the Board. The Board found that the applicant’s allegations that he had witnessed a murder and gave a statement to the police, and that he was assaulted in 2013 by Naresh’s brother and other men, were credible. However, the Board did not accept the remainder of the applicant’s claims regarding subsequent attacks and threats, due to the vagueness of the allegations and lack of detail and also inconsistencies in his evidence.

7.As a result, the Board was satisfied that the applicant’s claims of subsequently being pursued by Naresh and his relatives in India were not true. Thus the Board found that the applicant’s claim to fear ill-treatment at their hands upon his return to India was unfounded, and that even if all of the applicant’s claims were true, effective state protection would be available to the applicant. The Board concluded there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal on 12 July 2018 with reference to all applicable grounds.

The Judge’s decisions in the court below

8.On 20 July 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affirmation, the applicant set out a number of headings or catchphrases as grounds for judicial review, which the Judge summarized at [11] of the Form CALL-1:

“ 11. In his affirmation and a separate attachment in support of his application, he set out his grounds summarized as follows:

(1) no reasonable basis or adequate reasons to reject his credibility;

(2) failure to consider extended state acquiescence;

(3) failure to consider the COI;

(4) irregularity: the adjudicator is not the same immigration officer; failing to investigate the COI; selective weights to COI; adjudicator referring to COI without prior referring it to the applicant; failing to consider consistent system of human right violation; failing to consider state protection; consider irrelevant issues; no legal representation or hearing for the BOR 2 risk assessment;

(5) procedural impropriety: no sufficient chance for the applicant to call evidence; failing to call psychological and/or psychiatric report; applying incorrect standard of proof and no proper basis for internal relocation assessment.”

9.Following consideration of the documents only, on 19 March 2021 the Judge refused to grant leave to apply for judicial review, for reasons set out at [13] – [17] of the Form CALL-1 as follows:

“ 13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13.… …Assessment of evidence and COI 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.”

14. The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018, 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 [22].

15. His grounds in support of his application above are sweeping. Most of them are not applicable to his case. There was no state involvement in his case. The Board had given its reasons in support of its findings. See paragraphs 37-44 of the Board’s Decision. I consider that it is unnecessary to address each of his grounds. I have dealt with the relevant grounds by reference to the authorities above. There is no evidence or specifics in support of any of the other grounds. There is no problem with the consideration of the Country of Origin Information by the Board or the application of the law to his case. The grounds above should be rejected.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

10.The applicant did not appeal against the Judge’s decision within the 14-day period prescribed by rules of court. Belatedly, on 19 November 2021, the applicant took out a summons to seek an extension of time to appeal. The applicant however failed to provide any explanation for his delay or specify any intended grounds of appeal either in the summons or the accompanying affirmation.

11.Following consideration of the documents only, on 14 December 2021, the Judge refused to grant an extension of time to appeal as he did not see any prospect of success in the intended appeal, and dismissed the summons.

The renewed application before this Court

12.On 21 December 2021, the applicant took out a summons seeking from this Court an extension of time to appeal against the Judge’s refusal to grant leave for judicial review. Again, he did not explain his delay or raise any grounds of appeal.

13.The applicant lodged written submissions on 4 January 2022, in which he briefly referred to the basis for his non-refoulement claim as well as the procedural history, but did not put forward any specific grounds of appeal.

Discussion

14.Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.The applicant’s intended appeal was late by more than 7 months. Since the delay was substantial and the applicant has not provided any explanation for the delay, we should not grant any extension unless there is a real prospect of success in the intended appeal: Re Kanwal Gulnaz [2021] HKCA 636 at [15].

16.In assessing the merits of the intended appeal, we have regard to the principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 judgment below, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

17.In the present case, the Board rejected the applicant’s non-refoulement claim due to its adverse finding on the applicant’s credibility. As such, the Board found that there was no real risk of harm in the event of refoulement. The Board also found that effective state protection was available in any event. These findings are within the province of the Board and not to be interfered with except on proper grounds established for judicial review.

18.In his application for leave to apply for judicial review, the applicant had merely listed a number of catchphrases or headlines without condescending to particulars as to how the Board’s decision fell within those broad and generalised descriptions. The Judge had considered those “grounds” advanced by the applicant for the intended judicial review but found that they were either not applicable or not substantiated by any evidence or particulars. The applicant has been unable to advance any grounds of appeal against the Judge’s decision or point to any possible error on the part of the Judge.

19.In the circumstances we are unable to see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons of 21 December 2021 is accordingly dismissed.

The Applicant, unrepresented, acting in person