Bhagat Vishal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 21/2022

[2022] HKCA 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 21 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1998 OF 2018)

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BETWEEN

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions:  31 January 2022

Date of Judgment:  26 July 2022

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J U D G M E N T

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

1.On 17 January 2022, the Applicant took out a summons with a supporting affirmation seeking “leave to appeal” against the decision of Deputy High Court Judge K W Lung (“the Judge”)  given on 11 January 2022 refusing to grant an extension of time for the Applicant to appeal against an earlier order of the Judge dated 3 December 2021 (“the Order”)  whereby the Judge refused to grant him leave to apply for judicial review.

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 23 August 2018, which dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 13 April 2018.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of India.  He entered Hong Kong as a visitor on 28 October 2014, and overstayed.  On 6 November 2014, he surrendered to the Immigration Department.  On 27 January 2015, he lodged a non-refoulement claim.  The Applicant claimed that if refouled, he would be harmed or killed by his parental uncle over a land dispute passed down from his grandfather.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2021] HKCFI 3487).

5.By a Notice of Decision dated 13 April 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.On 23 August 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).  The Board evaluated the Applicant’s evidence including his oral testimony, and found that there were material facts and information provided by the Applicant which were implausible and unreliable.  The Board considered that the inconsistencies in the Applicant’s evidence greatly undermined his credibility.  The Board refused to accept that the Applicant had suffered any physical or mental pain as alleged, and rejected the allegation that his uncle was still looking for him.  The Board did not find the Applicant to be a credible witness.  The Board considered that, even on his own evidence, the Applicant’s alleged injuries did not amount to “severe pain”.  Further, the Board found that there was no evidence of state involvement or acquiescence, and in any event, internal relocation was available to the Applicant.

JUDGE’S DECISION

7.On 20 September 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

8.On 3 December 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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

‘13(1)  … 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.’

15. He has submitted no valid ground to assist his application. The Board has reject his evidence on the facts of his claim. He therefore has no factual basis in support of his claim.

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.”

9.On 11 January 2022, the Judge refused the Applicant’s application by summons dated 20 December 2021 for an extension of time to appeal against the Order.

THIS APPLICATION

10.By a summons taken out on 17 January 2022, the Applicant applied for “leave to appeal” against the Judge’s decision of 11 January 2022.  In his supporting affirmation filed on the same date, the Applicant complained that the Board’s decision to reject his appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness.  He also said that he disagreed with the decisions of the authorities and the court.  He gave no particulars of his allegations or complaints.

11.In his 3-page written submissions dated 31 January 2022, the Applicant makes some general complaints of procedural unfairness and irrationality on the part of the Director and the Board.  He states that he disagrees with the “observations” made by the Director and the Board, and considers that his claim has not been determined fairly.  He also states that it is untrue that there is State protection available in India.

DISCUSSION

12.Following the approach adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

13.In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.The prospect of success of an intended appeal is important.  The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.The court’s 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.

16.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 3 December 2021, and has failed to raise any viable ground of appeal against the Order in his summons or affirmation or written submissions.

17.There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.The application for extension of time to appeal is refused, and the Applicant’s summons of 17 January 2022 is dismissed.

The Applicant, acting in person