JAGG SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 64/2020

[2020] HKCA 844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 64 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1711 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 6 September 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decisions of the Torture Claims Appeal Board (“the Board”) and the Director of Immigration (“the Director”) concerning his non‑refoulement protection claim^[1].

2.  On 19 June 2020, the judge refused to grant leave to the applicant to appeal against his said decision out of time as he considered that the applicant was unable to show that he had a reasonable prospect of success in his intended appeal^[2].

3.  On 26 June 2020, the applicant took out a renewed application to the Court of Appeal seeking leave to appeal against the judge’s decision on 6 September 2019 out of time.

4.  The applicant is an Indian national of 26 years old.  He entered Hong Kong illegally on 11 December 2014 and was arrested by the police on 10 February 2015.  He lodged a non-refoulement claim on 13 February 2015.  He claimed that he would be harmed or killed by a supporter of the Congress Party called Jageera. 

The Director’s decision

5.  By a Notice of Decision dated 28 August 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk^[3], BOR 3 risk^[4], torture risk^[5] and persecution risk^[6].

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  The Board conducted a hearing on 11 May 2018.  The Board considered that the problems the applicant faced arose out of a private matter and there was no evidence to suggest that Jageera acted in the capacity of state actor.  The Board also observed a number of inconsistencies and contradictions in the applicant’s evidence and found that the applicant was not able to make out his claims.  Therefore, the appeal was dismissed by the Board on 17 August 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 22 August 2018 in HCAL 1711/2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He put forward the following grounds for his intended challenge:

(1)  the decisions were unfair and unreasonable;

(2)  the Director did not properly consider state acquiescence;

(3)  the Director did not consider or had failed to give enough weight to the applicant’s argument;

(4)  the Director did not give enough weight to the Country of Origin Information in the applicant’s favour; and

(5)  the Director failed to maintain high standard of fairness.

The judge’s decision

8.  The leave application was heard before DHCJ Lung on 28 February 2019.  The judge dismissed the application on 6 September 2019 as he considered that the applicant has no reasonable prospect of success in his proposed judicial review for the following reasons:

(1)  It was confirmed by the Court of Appeal in Re Moshsin Ali^[7] that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the Board is pursued by a claimant as the decision of the Director will be superseded by the decision of the Board. 

(2)  The applicant confirmed that he had no complaint against the adjudicator and as the Board had rejected all his evidence he has no factual basis in support of his claim.

The grounds of appeal

9.  In the applicant’s written submissions, he stressed that high standards of fairness are required in the determination of a torture claim^[8] and submitted that the adjudicator had acted in a procedurally unfair manner without properly assessing his credibility^[9]. 

Analysis

10.  The applicant’s applications below and before us are simply applications for extension of time to appeal. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 6 September 2019.  The applicant took out summons in the court below on 27 September 2019.  He was late by one week.

12.  At the hearing at the court below on 4 December 2019, he explained that he did not receive the judge’s decision of 6 September 2019 as he was detained by the Immigration Department^[10].  Given the short delay in the present case, the applicant’s explanation may be considered as acceptable.  The court would still assess whether the applicant can show there is reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[11].

13.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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.  Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation is 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.

15.  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.

16.  The applicant alleged that the adjudicator acted in a procedurally unfair manner without properly assessing his credibility^[12]. This ground was not raised in his previous leave application.  The Court of Appeal would not entertain such new ground as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds had failed in the court below^[13].

17.  In any event, his criticism is contrary to the fact that the adjudicator had set out in detail the behaviour detrimental to the applicant’s credibility as well as the inconsistencies and contradictions in the applicant’s evidence^[14].

18.  Furthermore, the applicant failed to put forward any viable ground to reverse the judge’s decision.  He failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  For the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore dismiss the summons filed on 26 June 2020 for leave to appeal against the judge’s decision out of time.