Re Pandey Nitesh Kumar

CAMP 331/2022

[2022] HKCA 1473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 331 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1199 OF 2021)

____________

____________

Before: Hon Cheung and G Lam JJA in Court

Date of Written Submissions: 16 September 2022

Date of Judgment: 10 October 2022

_________________

J U D G M E N T

_________________

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 Bruno Chan (“Judge”) dated 22 October 2021[1] refusing to extend time for the applicant to apply for leave to apply for judicial review and dismissing the application for such leave. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 18 March 2021. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 14 December 2018 rejecting his non-refoulement claim.

2.On 13 July 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.The applicant is an Indian national, born in 1991. He claimed that he entered Hong Kong illegally on 7 November 2015. He was arrested by the police on that day for illegally remaining in Hong Kong. Upon being referred to the Immigration Department, he said he intended to lodge a non-refoulement claim. His claim was made by written signification on 9 November 2015 and a non-refoulement claim form dated 13 November 2018. It was based on the fear that he would be ill-treated or even killed by his enemies in a land dispute. The applicant said that a brother of his grandfather, together with his family members, had tried to seize a small plot of land that the applicant’s father had given him, and had threatened and attacked him for that purpose.

4.The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6] By notice of decision dated 14 December 2018 the Director rejected the applicant’s claim.

5.The applicant appealed to the Board against the decision of the Director. The hearing of the appeal was held on 8 February 2021, at which the applicant gave evidence and answered questions from the Board. The Board found that the applicant was generally unable to provide coherent and detailed evidence about his claims and that his evidence was vague and general, and inconsistent both internally and with his previous claims made in writing in important respects. The Board concluded that the applicant was not generally credible and did not regard his claims as having any credibility. The Board did not accept the applicant had a land dispute as alleged. Accordingly, the Board held that the applicant had failed to show there was a genuine and substantial risk of ill-treatment if he returned to India. In its decision dated 18 March 2021, the Board dismissed the appeal and affirmed the decision of the Director.

The Judge’s decisions in the court below

6.On 9 August 2021, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. The application was made after the expiry of the 3-month period from the date of the Board’s decision as prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A). The applicant did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

7.Based on consideration of the documents alone, on 22 October 2021 the Judge issued his decision, refusing to grant an extension of time or leave to apply for judicial review. The reasons were set out at [10] – [17] of the Form CALL-1 as follows:

“ 10. As the last day of the 3-month period for him to file his Form 86 fell on 18 June 2021, the Applicant was therefore more than 2 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

11. In the Applicant’s case, a delay of more than 2 months must be considered as substantial or obstinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

12. As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

13. 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 the 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.

14. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 32 – 46 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, 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 in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

8.The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court, but only took out a summons on 24 November 2021 to seek an extension of time to appeal against the decision of the Judge. In his supporting affirmation, the applicant stated that he did not get the letter as he was in prison (presumably referring to the letter from the court containing the Judge’s decision).

9.The Judge held an oral hearing of the summons on 29 June 2022 but the applicant failed to appear. In his written decision dated 13 July 2022, the Judge dismissed the application as he did not see any prospect of success in the intended appeal.

The renewed application before this Court

10.By summons filed on 2 September 2022, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to extend time and grant leave for judicial review. In the accompanying affirmation, the applicant simply asked for an extension of time as the Judge did not extend time and stated that he did not agree with the Judge’s decision.

11.The applicant lodged written submissions on 16 September 2022 in which he said his enemy wanted to kill him in his country. He said he did not have the relevant documents because it was not possible for him to bring any documents when he left his country. He said there were many errors in the process before the Board, but he did not specify what they were. He explained again that he did not appeal in time because he did not get the decision.

12.Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.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. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. 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.

14.Leaving aside the reasons for the delay, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. In the present case, after hearing from him and asking him questions, the Board found the applicant’s evidence wholly lacking in credibility. This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the very detailed reasons it had given in its decision setting out the inconsistencies and vagueness in the applicant’s answers. Judicial review is not a further avenue of appeal. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, and irrationality in the ultimate decision. The applicant has wholly failed to advance any such public law grounds against the Board’s decision; nor can we see any from the materials before us.

15.The applicant has also failed to show how the Judge has erred in refusing to extend time and to grant leave for judicial review. Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review and that leave to apply for judicial review should therefore be refused.

16.We do not 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 is accordingly dismissed.

The Applicant, unrepresented, acting in person