Re Gora

CAMP 30/2022

[2022] HKCA1324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 30 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 852 OF 2018)

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JUDGMENT

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

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”) dated 8 October 2020[1] refusing his application for leave to apply for judicial review.

2.The applicant has filed a supporting affirmation, and also lodged a written submission to support his application.  

3.Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant is a national of India aged 38.  He arrived in Hong Kong on 28 July 2010 and was refused permission to land.  He then made a refugee claim.  On 7 January 2011, he raised a non-refoulement claim based on his fear of being harmed or killed by his village head named Baljit and his fellow villagers who were all Sikhs because he refused to convert from Christianity to Sikhism.  The details of the applicant’s claim were set out in the decision of the Director at [10] and the Board’s decision at [1].  We will not repeat them.     

5.By his decision dated 24 November 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.   

6.The applicant appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”).  A hearing was held on 8 January 2018, but the applicant did not turn up.  He told the staff of the Board who telephoned him that he would not attend the hearing.  The applicant subsequently wrote to the Board to tender his apology, explaining that he had changed his address but had not updated his information with the Board, and that he did not have the time or money to travel to the appeal.  The Board considered that the notice of hearing had been properly served at the applicant’s last known address and was not satisfied that good reasons had been given for the applicant’s absence. The Board decided to proceed to decide on the appeal. 

7.By its decision dated 12 April 2018, the Board dismissed the appeal.  In summary, the Board had concerns with the evidence provided by the applicant and had reservations in accepting his evidence on face value.  It identified the issues that it would have clarified with the applicant had he attended the hearing, which included why Baljit and the villagers had pursued him in particular, his village condition, whether Baljit still had any interest in him as well as internal relocation options.  The Board did not accept the applicant’s claims, including he had been pressurised to convert from Christianity to Sikhism, was pursued by his village head who was the chairman of the Akali Dal Party of Tehsil Anjali, and the police did not take up his report.  The Board concluded that the applicant failed to establish his case and entitlement to non-refoulement protection under any of the applicable grounds.

8.On 16 May 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any grounds for seeking relief.  He only stated in exhibit A to the affirmation that his life was in danger in India.

9.The Judge dealt with the application on paper.  The Judge refused to give leave to apply for judicial review for the reasons set out in [15] to [23] of the Form CALL-1 dated 8 October 2020 as follows:

“15. The Board made a determination without an oral hearing. I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 in respect of the requirement of an oral hearing. The Board scheduled an oral hearing for the applicant but he failed to attend. He told the officer of the Board that he would not attend and in his subsequent letter to the Board, he said he did not have time or money to travel to the Board.

16. The explanation was unconvincing and unacceptable. Even if it were true that he had no money for travelling, he could have approached the Duty Lawyer Service, voluntary NGO or the Immigration Department for assistance. In any case, he did not ask for another oral hearing. It was entirely proper for the Board to proceed to its decision without another oral hearing.

17. As can be seen from the decision of the Director, the applicant repeatedly delayed the screening process. His conduct was more consistent with someone evincing an intention to abuse the process than the reaction of one in genuine fear of his safety.

18. There cannot be any criticism of the fairness in the processes adopted by the Director and the Board.

19. In the present case, the Board dismissed the applicant’s appeal/ petition on the ground that it rejected the account of primary facts asserted by the applicant in support of his claim. On the factual findings, there would be no basis for the applicant’s claim on all applicable grounds.

20. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

21. The complaints raised by the applicant in his affirmation did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. I do not find any reasonably arguable basis to challenge the findings of the Board.

22. Indeed, even on his own account, the alleged past ill-treatment was of low intensity and frequency demonstrating a remote risk that he would be killed or seriously harmed in his home country. It cannot be established that the applicant would be at real risk of any type of proscribed harm, if refouled.

23.  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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.”

10.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The time for the applicant to appeal the Judge’s decision expired on 22 October 2020.

11.By a summons filed on 24 December 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Judge To dealt with the application on paper, and by his decision handed down on 14 January 2022[6] refused the application. 

12.On 21 January 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

13.In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

14.The applicant was two months late when he applied for extension of time on 24 December 2020.  He did not offer any explanation for the delay in the present application.  In the application made to the Court of First Instance, he had explained that he did not have the money to pay the court.  We take note that a court fee of $1,045 has to be paid when filing a notice of appeal[7], and are thus prepared to accept the reason given by the applicant.  We will focus on the merits of the applicant’s intended appeal, to which we now turn.    

15.In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.The applicant did not provide any specific ground in support of his intended appeal in either the summons or the affirmation.  He only stated that his life would be in great peril if he were to return to India.

18.In his written submission, the applicant put forward the following points:

(1)  The Board refused his appeal without any reason.

(2)  If he had no real fear or no problem in India, why would he run away and seek protection in Hong Kong.

(3)  He has no faith in the authorities in his country despite the change in government.

(4)  He has concerns that he is subject to a travel alert such that his life will be in great peril on his return to India.

19.The written submission also made reference to section 37ZO of the Immigration Ordinance, which relates to limitation on making further non-refoulement claims, and requested that legal and language assistance be provided to the applicant.   

20.For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  As summarised above, the Board had explained its decision.  It is incorrect for the applicant to say that the Board did not give reasons for its decision.    

(2)  Assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the applicant had failed to make good his case and his entitlement to non-refoulement protection.  The applicant has not put forward any specific grounds for challenging the Board’s finding and conclusion. In these circumstances, his assertion that he would be subject to harm upon return to India has no proper evidential basis.

(3)  The other matters stated in the written submission, such as section 37ZO of the Immigration Ordinance, have no relevance.           

21.We have separately considered the Board’s decision.  Like the Judge, we would not say that the Board’s decision to proceed with the determination of the appeal despite the absence of the applicant at the hearing amounts to procedural irregularity or unfairness. In particular, we note that the applicant has not raised any complaint in this regard, or indicated he had further information to provide to the Board at an oral hearing.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.           

22.In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 21 January 2022.