RE MANGAL SINGH AND OTHERS

CAMP 287/2019

[2020] HKCA 750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 287 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 341 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 24 May 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL-1 ([2019] HKCFI 817), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 21 December 2017 (“the Board’s Decision”).

2.  In the Board’s Decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 May 2017 (“the Director’s Decision”) rejecting the applicants’ non-refoulement claim.

3.  Under Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the 14‑day time period for the applicants to appeal the Deputy Judge’s Decision expired on 7 June 2019.  On 24 June 2019, the applicants sought extension of time to appeal the Deputy Judge’s Decision.  The applicants were 17 days out of time.

4.  On 23 September 2019, the Deputy Judge refused to grant extension of time to the applicants (“the Deputy Judge’s Extension of Time Decision”).

5.  By a summons dated 12 November 2019, the applicants renewed their application before this Court.  We will deal with the application on paper.

Background

6.  The applicants are a family of India origin.  The 1^st applicant (“Father”) is the husband of the 2^nd applicant (“Mother”).  The 3^rd, 4^th and 5^th applicants are their children, with 3^rd and 4^th applicants born in India while 5^th applicant in Hong Kong.  The Father came to Hong Kong on 27 April 2014 and was permitted to stay until 7 May 2014.  He overstayed and surrendered himself on 3 June 2014.  He lodged his non-refoulement claim on 26 September 2014.  The Mother came to Hong Kong together with the 3^rd and 4^th applicants on 26 January 2015 and overstayed since 10 February 2015.  They surrendered themselves on 16 February 2015. They raised their non-refoulement claims on 12 May 2015.  The 5^th applicant was born on 30 April 2016 and the Mother raised a non‑refoulement claim for him on 3 August 2016.  It is fair to say that the children’s non-refoulement claims are dependent on the parents’ claims.

7.  The applicants’ claim was based on the fear that, if they returned to India, they would be ill-treated or killed by people from Bharatiya Janata Party (“BJP”) and / or Shiromani Akali Dal.  The factual background was summarized at paragraph 13 of the Director’s Decision and paragraphs 13 - 16 of the Board’s Decision.

8.  The Father was a former supporter of BJP.  He joined BJP in around 2008 and was involved in campaigning for the party.  Later, he realized that BJP only made empty promises to its people and he changed party in 2012, taking with him documents that could prove the corruption of BJP’s leadership.  In 2013, he was attacked by BJP supporters and was asked to resume his support for BJP and return the documents.  The Father did not report to the police as he could not identify the attackers.  20 days later, he was attacked by BJP supporters again.  This time he reported to the police but instead the police took the documents from him.  Since he was constantly harassed by BJP supporters, and in the fear of another attack, the Father fled to Hong Kong.  After the Father left India, the Mother was threatened by the BJP supporters for the return of the documents.  Out of fear, she also fled to Hong Kong with the 3^rd and 4^th applicants.

The Director’s Decision and the Board’s Decision 

9.  By way of the Director’s Decision, the Director assessed and dismissed the applicants’ non-refoulement claim on the BOR 3 risk[1], persecution risk[2], torture risk[3] and the BOR 2 risk[4].

10.  The applicants lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 14 November 2017, during which the Father and Mother answered the Board’s questions.  After hearing the Father and Mother, and considering their evidence in the non-refoulement claim form as well as their oral evidence before the Board, the Board found that both of them were not truthful witnesses as there were multiple material inconsistencies in their versions of the key events (paragraphs 32 - 47 of the Board’s Decision).  On this basis alone, the Board dismissed the applicants’ appeal.

The Deputy Judge’s Decision

11.  On 5 March 2018, by way of a Form 86, the applicants sought to challenge the Board’s Decision by way of judicial review. Their grounds of review were summarized at paragraph 15 of the Deputy Judge’s Decision:

“15. On 5 March 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and in it they put forward the following grounds for their intended challenge:

(1) misdirection in law in that the adjudicator misdirected himself on the law by taking into account that A1 and/or the other applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up‑to‑date COI in the consideration of their claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and misdirected himself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicants;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicants resulting in unfair procedure.”

12.  After hearing the applicants and considering the documents, the Deputy Judge refused to grant leave to the applicants to apply for judicial review.  He set out his reasons at paragraphs 16 - 23 of the Deputy Judge’s Decision:

“16. These are however all just broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was their legal representation from their assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and I do not find any basis or merits in any of them, or that they are reasonably arguable for their intended challenge.

17. The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before the appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for the appeal.

18. Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decision should be well familiar to the applicants as they had earlier all been made available to them when they still had legal representation, whilst their NCF was completed on their own instructions with legal assistance, and that at their oral hearing they never raised any issue or requested the adjudicator for further time to enable them to better prepare for the appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

19. As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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, and that judicial review is not an avenue for revisiting the assessments by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

20. In the present case, the adjudicator rejected the applicants’ claim based on his adverse findings on the credibility of both A1 and A2 after hearing them in their evidence at their appeal hearing for the detailed analysis and reasons set out in §§29 ‑ 47 of the Board’s decision, and in the absence of any legal error or procedural unfairness being properly and clearly shown by the applicants, I do not find any reasonably arguable basis to challenge these findings of the Board.

21. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, a decision subsequently confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

22. 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 applicants’ claim.

23.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

Application for extension of time

13.  On 24 June 2019, the applicants took out the summons to seek extension of time to appeal the Deputy Judge’s Decision.  In the summons, the Father said that he did not get the decision on time.  In his supporting affirmation, he said that the Deputy Judge’s Decision was sent to his mailbox in time but he could not explain why he did not get it.  He also said that he was advised that there was a good ground of appeal but he did not provide any specifics to the said good ground. He also argued that the Board and the Director failed to consider the real situation in his home country.  Other than that, he did not advance any grounds against the Deputy Judge’s Decision.

14.  By way of the Deputy Judge’s Extension of Time Decision, the Deputy Judge dismissed the applicants’ summons.  He held that although the delay was not significant, the applicants did not provide any good reasons for the delay.  In any event, it would be futile to extend time as there was no prospect of success in the intended appeal.

Renewed application for extension of time to this Court

15.  On 12 November 2019, the applicants renewed their application for extension of time to appeal the Deputy Judge’s Decision before this Court.  In the supporting affirmation, the Father put forward two grounds (a) the Deputy Judge was wrong in law in holding that there was no state acquiescence or involvement; and (b) the Deputy Judge failed to provide detailed reason in support of his decision.

Legal principles

16.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, 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: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

17.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal, see: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re Ansar Muhammad [2018] HKCA 227; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

18.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court.

Discussion

19.  In our view, the applicants’ application for extension of time is without any merit.

20.  Although the delay of 17 days would not be considered as significant, the applicants failed to provide any explanation as to why they failed to lodge the appeal on time given that the Deputy Judge’s Decision was sent to them on time.  In this premise, the applicants must satisfy this Court that their intended appeal had real prospect of success.

21.  We are of the view that the two grounds advanced by the applicants have no prospect of success, let alone a real one.

22.  Insofar as the 1^st ground of appeal is concerned, the applicants’ complaint in relation to the Deputy Judge’s finding on state involvement is misplaced.  The Board dismissed the applicants’ claim on the sole basis of credibility.  Since the Deputy Judge was to review whether the Board had made any errors in the Board’s Decision, he did not make any decision relating to state involvement or acquiescence.  There is simply no question of the Deputy Judge erring in this aspect.

23.  In any event, the finding of state acquiescence or involvement is within the primary province of the decision makers.  The Director had at paragraphs 29 - 34 of the Director’s Decision found that there was no state involvement and that state protection was available to the applicants.  The Deputy Judge had at paragraph 22 of Deputy Judge’s Decision concluded that the decisions of the Director and the Board had no errors and had achieved the high standards of fairness required for assessing the applicants’ non-refoulement claim.  In this regard, the applicants failed to identify with sufficient particularities as to why the Deputy Judge was wrong in so holding.

24.  There are therefore no merits in this ground of appeal.

25.  As to the 2^nd ground of appeal, it is clear from the Deputy Judge’s Decision as quoted above that he has provided detailed reasons for his conclusion at paragraphs 16 - 23 of the Deputy Judge’s Decision.  This ground of appeal is also entirely unmeritorious.

26.  In the skeleton argument dated 19 December 2019, for the 1^st ground of appeal, the applicants quoted some passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  For the 2^nd ground of appeal, the applicants quoted The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 on the decision maker’s “duty to act fairly.”

27.  These however are related to complaints directed at the Director and the Board, which had been properly addressed by the Deputy Judge in his reasons.  As mentioned above, the applicants have not identified anything to demonstrate why the Deputy Judge was wrong in his reasons.  These authorities therefore do not assist the applicants.

28.  In any event, we have reviewed the decisions of the Board and of the Deputy Judge and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

29.  The intended appeal had no merits at all.  It would be futile to extend time to the applicants.  Accordingly, we dismiss the applicants’ summons of 12 November 2019.