Re Pradeep Kumar

CAMP 343/2021

[2022] HKCA 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 343 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2710 OF 2018)

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Before: Hon G Lam and Chow JJA in Court

Date of Written Submissions: 2 September 2021

Date of Judgment: 4 May 2022

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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 leave to appeal out of time against the decision of Deputy High Court Judge K W Lung (“Judge”) on 2 June 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 7 November 2016 and 22 November 2018. In those decisions, the Board upheld the decisions of the Director of Immigration (“Director”) dated 12 September 2014 and 10 January 2017 respectively rejecting the applicant’s non-refoulement claim.

2.Subsequently, by a decision dated 3 August 2021,[2] the Judge refused to extend time for the applicant to appeal against his decision of 2 June 2021.

Background

3.The applicant is an Indian national born in 1991. He came to Hong Kong on 26 February 2014 and raised his non-refoulement claim on the same day. His claim was based on the fear that, if he returned to India, he would be harmed or even killed by his neighbour Surinder Singh, who was a member of the political party, Shiv Sena Party, and had made violent attempts to displace the applicant from the farmland obtained from the applicant’s father. The factual background was set out at [16] of the Board’s decision of 7 November 2016.

4.By notices of decision dated 12 September 2014 and 10 January 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The former decision covered BOR 3 risk,[3] persecution risk,[4] and torture risk;[5] the latter covered BOR 2 risk.[6]

5.The applicant brought two separate appeals to the Board against the Director’s decisions. For the appeal against the Director’s first decision, an oral hearing was held on 17 April 2015, whereas for the appeal against the Director’s second decision, an oral hearing was held on 1 November 2018. In both appeals, the applicant appeared in person at the hearings, gave oral testimony and answered the Board’s questions.

6.In its decision of 7 November 2016, the Board considered that the applicant’s testimony at the hearing was inconsistent with the account of events given in his non-refoulement claim form dated 9 April 2014 which the applicant had filled in with the assistance of the Duty Lawyer Service. Thus, for example, the applicant told the Board that he had been farming the land in question for some 8 to 10 years, since 2005 or 2006, but in the claim form he had stated that he only started farming after his father gave him the land in February 2013. The applicant switched back to the version in the claim form when he was specifically asked by the Board when Surinder prevented him from working on the farm. In the claim form the applicant said he was a member of the Congress Party, but at the hearing he told the Board he was only a supporter and that his father was a member of that Party. In the claim form the applicant said that after he fled to Delhi he contacted his family by phone, but at the hearing he said there was no phone in the family so that he was not able to reach them by phone during his stay in Hong Kong. The Board set out its concerns over these and other inconsistencies in the applicant’s evidence at [18] to [26] of its decision. As a result, the Board found that the applicant’s account was not logical or reasonable, and did not accept his story about inheriting his father’s land in 2013 or that Surinder had acted oppressively towards him in order to dispossess him of the land. The Board also considered that the applicant had the option of relocation to other parts of India which was a vast country with a huge population. On that basis, the Board concluded that there was no real risk of harm in the event of refoulement, and dismissed the appeal in relation to all applicable grounds except BOR 2 risk.

7.In its decision of 22 November 2018 following a hearing on 1 November 2018, the Board noted that the applicant’s account of events at that hearing had undergone further changes. The Board considered there was no reasonably credible account of events put forward by the applicant. On that basis, the Board concluded that there was no real risk of harm in the event of refoulement, and dismissed the appeal in relation to BOR 2 risk.

The Judge’s decisions in the court below

8.On 29 November 2018, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decisions. In his supporting affirmation, the applicant simply stated that the Board’s decisions were not correct because they failed to consider the realities before reaching the decisions.

9.Following consideration of the documents only, on 2 June 2021 the Judge refused to grant leave to apply for judicial review. The reasons were set out at [15] – [17] of the Form CALL-1 as follows:

“ 15. 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.’

16. His ground in support of this application is only his opinion without evidence in support and therefore does not assist his application.

17. 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.”

10.The applicant did not appeal against the Judge’s decision within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). Instead, he belatedly took out a summons on 12 July 2021 to seek an extension of time to appeal. In his supporting affirmation, he stated that he had no means to instruct a private lawyer, but understood that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review. He did not however state what that ground was.

11.The Judge determined the application without an oral hearing. In his decision dated 3 August 2021, the Judge stated that he did not see any prospect of success in the intended appeal, and dismissed the summons.

The renewed application before this Court

12.On 16 August 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the Judge’s refusal to grant leave for judicial review. In his supporting affirmation, the applicant stated that he was unrepresented and did not have access to legal advice, and reiterated that he understood that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review. Again, he did not state what that ground was.

13.The applicant lodged his written submissions on 2 September 2021, but he merely set out certain general legal principles and quoted passages from authorities and statutes, and asserted that the Board had acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

Discussion

14.Pursuant to Order 53, rule 3(4), an applicant has 14 days to lodge an appeal against a judge’s refusal of leave for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time, 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.In assessing the merit of the intended appeal, we shall have regard to the legal 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 judge, 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.

16.The applicant’s intended appeal was late by 26 days. In rejecting the initial application for leave to appeal out of time, the Judge focused on the merits of the intended appeal. We shall do likewise.

17.In the present case, the Board made each of its decisions after an oral hearing in which the applicant gave oral testimony and answered questions from the Board. The Board set out in some detail the inconsistencies in the applicant’s evidence that had given rise to concerns over the credibility of his account and eventually led the Board to reject his evidence. We have considered whether the applicant had sufficient notice during the hearings so as to enable him to explain the inconsistencies. In Re Masud Md [2021] HKCA 1449, this Court[7] held that the Board failed to act in accordance with the requisite high standard of fairness when matters of concern determinative of the outcome were not explored with the applicant, nor were the consequences of those matters if left unexplained put to the applicant. That, of course, was a case in which the applicant declined to participate in the Board hearing or to answer questions except a very few preliminary ones. It does not mean that every minute aspect of the case has to be “put” to the applicant. As Zervos JA, giving the judgment of this Court[8] in HKSAR v Chan Hing Kai [2020] 1 HKLRD 1082, said at [49(3)], the rule in Browne v Dunn (1893) 6 R 67 admits of flexibility and requires considerable care and circumspection in its application. All the more so in the application of an analogous rule in the context of the adjudication of a non-refoulement claim which, as pointed out in Re Masud Md at [42], is not an adversarial proceeding but an exercise of joint endeavour in which it is for the applicant to make out his case for non-refoulement protection and for the Board to ensure that the claim is fairly processed. It may not be necessary expressly to “put” every inconsistency to the applicant in the style of cross-examination in order to seek an explanation for it, and sometimes the applicant’s claims may be non-sensical or of a fantastic nature, or the perceived inconsistencies may be incapable of intelligible explanation (see Re Masud Md at [38]). What fairness demands will depend on the circumstances of each case, but a broad indication of the key problems with the applicant’s core evidence as perceived by the Board at the hearing will often serve to ensure that the applicant is given a fair opportunity of addressing them before the Board decides to reject his claim.

18.It is not clear from the Board’s decisions whether this was done in the present case. It would have been better if the Board had broadly recorded its procedures and reasoning in this respect. But we do not think this point ultimately assists the applicant, because the Board concluded that in any event internal relocation was a reasonable option available to the applicant. This is a conclusion that was entirely open to the Board, and the applicant has been unable to point to any public law error that arguably vitiates it.

19.In these circumstances, we take the view that there is no realistic prospect for the applicant to succeed in the intended judicial review and in quashing the Board’s decisions. On this basis there is no reasonable prospect for the applicant to succeed in the intended appeal and obtain an order granting leave for judicial review.

20.For these reasons, the application for extension of time to appeal is dismissed.

The Applicant, unrepresented, acting in person