Re Joginder Pal

CAMP 370/2022

[2022] HKCA 1912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 370 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 192 OF 2019)

____________________

____________________

Before:  Hon Cheung and G Lam JJA in Court

Date of Written Submissions: 7 October 2022

Date of Judgment: 18 January 2023

_________________

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 K W Lung (“Judge”) dated 28 March 2022[1] refusing the applicant 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 8 January 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 30 August 2017 rejecting his non-refoulement claim.

2.On 2 August 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 1984.  He claimed that he entered Hong Kong illegally on 27 October 2015.  He was arrested by the police on the next day for being a suspected illegal immigrant.  He lodged a non-refoulement claim on 2 November 2015.  His claim was based on the fear that he would be ill-treated or even killed by his paternal uncle because of a business dispute between them.

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 30 August 2017, 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 19 October 2018, at which the applicant gave evidence and answered questions from the Board.  The Board found the applicant’s evidence vague and lacking in detail, and did not accept that his inability to provide consistent and detailed evidence was due to any inability to recall the events.  It found many of the applicant’s statements were neither coherent nor plausible, and that the applicant had sought to exaggerate the conflict between his family and his uncle over their shared business.  In conclusion, the Board did not accept the applicant’s claim that he had a serious ongoing dispute with his uncle about a business, and found that there was no basis for his claim to fear violence at the hands of his uncle should he return to India.  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 8 January 2019, the Board dismissed the appeal and affirmed the decision of the Director.

The Judge’s decisions in the court below

6.On 21 January 2019, 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 applicant did not specify any ground for judicial review in the Form 86.  In the accompanying affirmation he stated that his uncle wanted to kill him, that the authorities in this country would not protect him and that relocation was not possible.

7.Based on consideration of the documents alone, on 28 March 2022, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out at [13] – [18] of the Form CALL-1 as follows:

“ 13. 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).

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

15. 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.’

16. The applicant has not raised any valid ground to challenge the Board’s Decision.

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.

18. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

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 (Cap 4A), but only took out a summons on 25 April 2022 to seek an extension of time to appeal against the decision of the Judge.  The applicant stated that he failed to appeal in time as he was affected by Covid-19.  By an amended order dated 28 June 2022, the Judge granted the applicant a 14-day extension.  However, the applicant failed to lodge his notice of appeal within the extended period.  By a further summons dated 13 July 2022, he sought further extension of time to appeal.  The Judge dealt with that application on paper.  In his written decision dated 2 August 2022, the Judge dismissed the application as he could not see any prospect of success in the intended appeal.

The renewed application before this Court

9.By summons filed on 22 September 2022, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the summons and the accompanying affirmation, the applicant simply stated he did not agree with the Judge’s judgment.

10.The applicant lodged written submissions on 7 October 2022 in which he said he did not get the decision from the court.  He claimed that the Board was his enemy and “killed” his claim.  He asked this court to consider his claim and grant him leave to apply for judicial review.

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

Discussion

12.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.

13.Leaving aside the reasons for the delay, we are satisfied that extension of time should be refused because of 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 to lack credibility and rejected his core claim that he had a business dispute with his uncle resulting in risks of his being ill-treated or killed by his uncle should he return to India.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the 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 defect resulting in unfairness, and irrationality in the ultimate decision.  The applicant has wholly failed to advance any such public law grounds; nor can we see any from the materials before us.

14.The applicant has also failed to show how the Judge has erred in refusing 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. 

15.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