KULJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 42/2024, [2024] HKCA 876

On Appeal From [2023] HKCFI 2917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 42 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1154 OF 2019)

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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 extension of time to appeal against the decision of Deputy High Court Judge K.W. Lung (“Judge”)  dated 1 December 2023[1] refusing to grant extension of time for the application for leave to apply for judicial review and dismissing the application for 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 7 December 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 10 January 2018 rejecting his non-refoulement claim.

2.  On 5 March 2024, the Judge refused to extend time for the applicant to appeal against his decision of 1 December 2023.

Background

3.  The applicant is a national of India born in 1989.  He first arrived in Hong Kong on the strength of his Indian passport on 3 June 2016, but he was refused permission to land and was removed from Hong Kong on the next day.  The applicant claimed to have last entered Hong Kong illegally through Mainland China on 29 July 2016.  On 1 August 2016, he surrendered to the Immigration Department and indicated his intention to lodge a claim for non-refoulement protection on the basis that he would be harmed or killed by supporters of the political party, Shiromani Akali Dal, (“SAD”)  for supporting an opposing political party called Aam Aadmi Party (“AAP”), if he was refouled to India.  He raised his claim by written representation dated 20 October 2016.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 10 January 2018, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 20 August 2018, but the applicant was absent despite various telephone calls made prior to and on the day attempting to reach him. The Board subsequently sent the applicant a letter requesting him to give reason for his absence within 7 days, but he failed to reply.  As a result, the Board proceeded to assess the applicant’s claim based on the available materials.  In its decision dated 7 December 2018, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [8] to [9] of the Form CALL-1:

“ 8. Having considered the evidence, the Board found that the injuries sustained by the applicant failed to attain a minimum level of severity [46]; that the allegations in relation to his friends’ sufferings lacked documentary evidence [47]-[48]; that the SAD members were not public officials or acting in the public capacities [49]; that the country of origin information showed that the AAP was quite successful in the recent elections and the police should not ignore any complaint of assaults against the applicant in his areas should it happen again [52]; that state protection and internal relocation were both available options to the applicant [60]-[65].

9.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.”

The Judge’s decisions in the court below

6.  About 1.5 months after the expiry of the 3-month time limit for judicial review prescribed by Order 53 rule 4(1)  of the Rules of the High Court (Cap 4A), on 30 April 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’s grounds of appeal were essentially that the decisions of the Director and the Board were not reasonable and not fair in light of human rights principles; that the Director failed to give proper weight to the presence of state acquiescence in his case; that the Board acted unreasonably and procedurally unfairly by placing too much reliance on COI instead of the applicant’s personal background and experience; that the Director failed to take into account the corruption of police and the administration in India; that the Director failed to attain the high standard of fairness required; that the Board was procedurally improper and unfair in assessing the applicant’s explanations and failed to consider the nexus of political parties and official corruption; and that the Board dismissed the applicant’s appeal based on findings which ought to have led to the appeal/petition being allowed.  In the supporting affirmation, the applicant stated that he was not in possession of his documents and could submit them upon his release from Castle Peak Bay Immigration Centre.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 1 December 2023, the Judge issued his decision to refuse to grant extension of time for the application for judicial review and to dismiss the application for leave to apply for judicial review. The reasons were set out in [12] to [20] of the Form CALL-1 as follows:

“ 12. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file Form 86 is 7 March 2019. The delay is more than one and a half month. The applicant has not explained why she was late. I shall, nevertheless, first consider the merit of the applicant’s case.

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, §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. As the applicant was absent before the Board despite due notice under the Ordinance had been given to him by the Board, the Board was right to deal with his appeal on the evidence before it. For the reasons given in paragraph 8, supra, the Board found that he was unable to establish his claim and dismissed his appeal.

17. Those grounds in paragraph 11 do not assist the applicant. Ground (6)  is clearly copied from other cases as he had not attended the Board’s hearing. the other grounds are his own personal opinions without any evidence in support.

18. I find that the applicant has not been able to raise any valid reason to challenge the Board’s Decision.

19. 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.

20.   The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

8.  A few days after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), the applicant filed a summons on 20 December 2023 together with a supporting affirmation to apply for extension of time for appeal on the ground that he did not receive the Judge’s order within reasonable time.  In his affirmation, the applicant stated that he did not receive the Judge’s order and judgment within 14 days, so he should be given a reasonable opportunity to proceed with his case.  He did not set out any proposed grounds of appeal but simply annexed the Judge’s order and judgment dated 1 December 2023.  On 5 March 2024, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicant had failed to show any reasonable prospect of success in his intended appeal.

The renewed application before this Court

9.  By summons filed on 6 March 2024, the applicant made an application to this court for leave to appeal from the order of the Judge dated 1 December 2023 due to the order being lost in the post.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 1 December 2023 refusing leave for judicial review. 

10.  In the applicant’s supporting affirmation, he stated that the documents were lost in the post and he could only get them from searching the court file, without any further elaboration.

11.  The applicant did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 6 March 2024.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

12.  The applicant was late for 5 days when he filed his summons for extension of time on 20 December 2023.  In his supporting affirmation, the applicant merely stated that he did not receive the order.  As the applicant’s delay was relatively short, we shall focus on the question whether there are prospects of success in the intended appeal.

13.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, 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 of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board had assessed the applicant’s evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim because it considered that the past incidents did not reach the requisite level of harm, that there was no documentary evidence to support the allegations of his friends’ sufferings, that the supporters of SAD were not public officials, that the COI revealed that the AAP was quite successful in the recent elections so the police should not ignore complaints of assault by the applicant in the future; and that state protection and internal relocation were viable options for the applicant.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

15.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  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, or irrationality in the decision.  The applicant has failed to establish a reasonably arguable case on any such public law grounds.

16.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review. 

17.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 6 March 2024 is accordingly dismissed.