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

CAMP 171/2024, [2025] HKCA 165

On An Intended Appeal From [2024] HKCFI 1675 &

[2024] HKCFI 2114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 171 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1710 OF 2019)

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J U D G M E N T

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

1.  On 3 September 2024, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 30 August 2024 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 24 June 2024 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 21 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 June 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of India. He claimed to have entered Hong Kong illegally on 15 October 2016. On 17 October 2016, he surrendered himself to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the village head (Kewal Singh) of his home village and also the sons and followers of the village head due to a land dispute. Details of the Applicant’s claim have been summarised by the Judge at §§4-13 of the CALL-1 Form ([2024] HKCFI 1675).

5.  By a Notice of Decision dated 27 June 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 21 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §§18-20 of the CALL-1 Form, as follows:

“[18] The Board was of the view that the material facts and information provided by the applicant were unreliable. They had doubts on the claimed land dispute and considered it implausible that the village head would only go after him, but not his father for the land. The Board also found it implausible regarding the applicant’s non-reporting of the various assaults to the appropriate authorities and that he was granted bail without any condition. Furthermore, it was implausible that the applicant would choose to stay at his hometown in India after returning from Malaysia and Hong Kong if he really faced such imminent danger. In any event, the applicant’s claim about the infeasibility of internal relocation and state protection contradicted with the country of origin information (‘COI’) [42].

[19] Based on such findings, the Board found the applicant dishonest and that he was not a genuine claimant. They were not convinced that the applicant came to Hong Kong because of the claimed threats from the village head and that he suffered the claimed injuries. They were also not convinced that there was a land dispute and that the village head was chasing the applicant all over India in order to harm/kill him [43].

[20] The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [30]-[40], [45]-[54], [57]-[58], BOR 2 and BOR 3 risk [59]-[65] or Persecution risk [66]-[74]. Furthermore, state protection and internal relocation were also available to him taking into account the COI [55]-[56], [75]-[78].”

7.  On 20 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86. In his supporting affirmation filed on the same date, he merely stated that he did not want go back to his home country, because his life would be in danger over there.

THE JUDGE’S DECISION

8.  On 24 June 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[24] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board...

[25] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong for not believing his evidence.

…

[27] For those reason given by the Board above, the Board rejected the applicant’s evidence in support of his claim. The applicant has raised no valid reason to challenge the Board’s Decision. There is simply no reason for this Court to interfere with the Board’s finding of the facts.

[28] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

9.  On 9 July 2024, the Applicant applied by summons for an extension of time to appeal against the Order. By then, he was one day late to lodge his appeal. On 30 August 2024, the Judge refused the Applicant’s application, holding that there was no valid reason for the Applicant to challenge the Board’s Decision or the Judge’s decision of 24 June 2024 ([2024] HKCFI 2114).

THIS APPLICATION

10.  By a summons taken out on 3 September 2024 in the Court of Appeal, the Applicant applied for leave to appeal out of time against the Judge’s order of 30 August 2024. No ground of appeal was given in the summons, or in his affirmation filed in support of the application, other than repeating his fear of returning to India, and stating that he did not agree with the decisions of the court and he believed that they were not fair.

11.  In his 5-page written submissions lodged on 17 September 2024, the Applicant alleged, inter alia, that:

(1)  The Judge did not apply the principle of irrationality to the decisions of the Director and the Board[5].

(2)  The Judge did not apply high standards of fairness[6].

(3)  The Judge did not apply the principle of procedural fairness, as the Director and the Board were required to give reasons to justify their decisions[7].

(4)  The Judge did not carefully consider the problems he would face in India[8].

(5)  The Judge’s decision was unreasonable[9].

(6)  The Board failed to give him a sufficient chance to provide evidence[10].

(7)  The Board relied on unofficial and hearsay materials[11].

DISCUSSION

12.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

13.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.  The Applicant’s delay in the present case is not significant. We shall therefore concentrate on the merits of the Applicant’s intended appeal.

15.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

16.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

17.  Further, the assessment of evidence, COI, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

18.  The complaints raised in the Applicant’s summons, affirmation and written submissions are all general allegations without particulars, and do not constitute valid grounds of appeal. The Applicant has failed to identify or show any arguable error in the Judge’s decision of 24 June 2024, and has failed to raise any viable ground of appeal against the Order.

19.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

20.  The Applicant’s summons taken out on 3 September 2024 is dismissed.