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

CAMP 10/2022, [2023] HKCA 1085

On Appeal From [2019] HKCFI 1560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 10 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2487 OF 2018)

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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 17 June 2019 refusing leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 18 October 2018.  In that decision, the Board dismissed the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 10 August 2016 and 19 July 2017 respectively rejecting his non-refoulement claim.

Background

2.  The applicant is a national of India born in 1990.  He arrived in Hong Kong on 1 September 2012 for the purpose of claiming protection from torture, and was refused permission to land.  He lodged a torture claim[1] which was rejected on 28 November 2012.  He did not lodge any petition against that determination, and had not reported to the Immigration Department since 18 December 2012.  He was arrested by the police in Hong Kong on 21 December 2013 for possession of a false instrument.  Thereafter he lodged a non-refoulement claim by written significations in January 2014, on the ground that if he returned to India, he would be harmed or killed by the family of his wife, Mandeep Kaur, and by his own family, because they were opposed to their marriage.  The details of his claim are set out at [21] to [44] of the Board’s decision.

3.  The applicant’s claim was first assessed by the Director with reference to BOR 3 risk[2] and persecution risk,[3] and subsequently with reference to BOR 2 risk.[4]  By notices of decision dated 10 August 2016 and 19 July 2017 respectively, the Director rejected his claim. 

4.  The applicant appealed to the Board against the Director’s decisions.  The Board held an oral hearing of the appeal on 8 September 2017, at which the applicant gave evidence and answered the Board’s questions.  Because of the inconsistencies and deficiencies in the applicant’s evidence, the Board had considerable doubt on whether the applicant in fact married Mandeep Kaur.  It found the applicant “not to be a credible, truthful and reliable witness”, and that he had “fabricated and exaggerated his evidence to advance a claim for non-refoulement protection”.  The Board did not accept that the applicant was harmed by his former wife’s family prior to his leaving India and considered that he was therefore not at risk of harm should he return.  Accordingly, in its decision dated 18 October 2018, the Board dismissed the appeal and affirmed the decisions of the Director. 

The Judge’s decisions in the court below

5.  On 6 November 2018, 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, without specifying any grounds in that form.  In the accompanying affirmation, the applicant raised a number of matters which the Judge summarised as follows at [11] ofthe Form CALL‑1 as follows:

“ 11. In his affirmation in support of his application dated 6 November 2018, the applicant relied upon the following grounds:

(1) the Director’s Decision was unfair as he failed to consider and give proper weight to state acquiescence;

(2) he was not provided with language assistance;

(3) he was not provided with legal assistance for this application;

(4) he was not aware of the Director’s Further Decision;

(5) the Director did not make a full research, but was only adopting a uniform approach, cherry picking the Country of Origin Information (“COI”) without giving reasons as to why he preferred the COI not beneficial to his case;

(6) the Director failed to consider his case properly and he did not consider extended acquiescence issue;

(7) the Director failed to give sufficient weight to his argument; and

(8) the Board failed to consider that he was under big pressure and high stress that he tended to forget things and that it did not believe him.”

6.  After hearing the applicant in court on 12 April 2019, the Judge issued his decision on 17 June 2019, refusing to grant leave to apply for judicial review.  The reasons were set out at [16] – [24] of the Form CALL‑1 as follows:

“ 16. The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His friend had explained to him the hearing bundle. Their respective decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

17. It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

18. All those grounds are irrelevant to the Board’s findings above.

19. His case has nothing to do with the state. Grounds (1) and (6) fail.

20. Ground (2) is inconsistent with what he said before this Court.

21. He does not have the absolute right of free legal representation at every stage of the proceedings as he had already had legal representation at the screening stage. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22. Ground (3) fails.

22. Ground (4) has no relevance as he had already put his case before the Adjudicator.

23. Grounds (5) to (8) are his opinions without any evidence in support of them.

24. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

7.  The applicant did not appeal within the period of 14 days prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). Instead he filed a summons in the Court of First Instance on 9 September 2019 seeking an extension of time to appeal.  In the accompanying affirmation the applicant said that he did not receive the order and the CALL-1 Form from the court.

8.  The judge held another hearing on 1 November 2019, attended by the applicant.  As recorded by the Judge, he asked the applicant if he could state what error the Judge had committed in coming to his decision.  The applicant replied that he did not have any reason to say that the Judge was wrong.  On 12 June 2020, the Judge handed down his decision in writing, refusing to grant an extension of time on the ground that the applicant had failed to show any prospect of success in his intended appeal.

The renewed application before this Court

9.  By summons filed in this court almost 19 months later on 10 January 2022, the applicant made another application for extension of time to appeal against the decision of the Judge refusing to grant leave for judicial review.  In his affirmation he stated that he was unaware of the 14‑day time limit, that he was never served with the order, and that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.

10.  Despite the directions of the Registrar of Civil Appeals requiring him to lodge written submissions, the applicant has not to date made any written submissions for the present application.

11.  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

12.  Quite apart from the delay between the date of the Judge’s decision dated 17 June 2019 and the applicant’s summons for extension of time below dated 9 September 2019, there was an extraordinary and wholly unexplained delay of 19 months after the Judge refused an extension of time in June 2020 before the applicant eventually filed a renewed application in this court for extension of time.

13.  Furthermore, we can see no merits whatsoever in the intended appeal.  In the present case, the Board rejected the applicant’s non-refoulement claim because it found the applicant to have fabricated and exaggerated his evidence in order to claim non-refoulement protection in Hong Kong.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.  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 any such public law grounds to the standard justifying leave being granted for judicial review.  Having considered the materials available, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review. 

14.  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 ground to show how the Judge is said to have erred in refusing to grant leave for judicial review.  The allegation that the judge had unfairly not given the applicant an opportunity to clarify his case is plainly untrue since the Judge held an oral hearing attended by the applicant who was given the opportunity freely to make submissions in support of his application. 

15.  We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.

[1]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[2]   This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]   This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]   This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).