RE GORPREET SINGH

CACV 648/2020

[2021] HKCA 951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 648 OF 2020

(ON APPEAL FROM HCAL 913/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 15 December 2020 refusing to grant extension of time for his application for leave for judicial review and dismissing his application for leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”)  dated 8 April 2015 and 15 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 4 January 2017 rejecting the applicant’s non-refoulement claim based on BOR 2 risk[1].

Background

2.  The applicant is a national of India.  He entered Hong Kong on 1 March 2014 by air and was refused permission to land.  He lodged a non-refoulement claim on the same day.

3.  The applicant’s claim was based on threats from his father-in-law.  The details of the applicant’s claim have been summarised by the judge at [1] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 11 July 2014 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[2], the persecution risk[3] and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 January 2015, the Board dismissed the appeal on 8 April 2015 (“Board’s Decision”).

6.  At [56] of the Board’s Decision, the Board found that the applicant’s allegation that his father-in-law wanted to harm him was not plausible.  The Board also dismissed his allegation that he suffered ill-treatment from the local police. The Board was also satisfied at [74] that there was nothing to suggest that the applicant would not be afforded the requisite level of protection from the Indian government upon return and at [78] that internal relocation would be viable.

7.  By a Notice of Further Decision dated 4 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[5], and decided against him.

8.  The applicant again appealed to the Torture Claims Appeal Board.  As the applicant was late in filing the Notice of Appeal/Petition, the Board had to decide under section 37ZT(2)  of the Immigration Ordinance, Cap 115 whether to allow the late filing of the notice.

9.  After considering the applicant’s explanation for the delay, the Board held on 15 February 2018 that the delay was inexcusable and refused to allow the late filing of the notice. 

The judge’s decision

10.  The applicant filed a Form 86 on 24 May 2018 against the Board’s Decision dated 8 April 2015 and 15 February 2018 which contained no ground for seeking relief.

11.  In his affirmation in support of the leave application filed on 24 May 2018, the applicant deposed that:

“I can’t go back to my country at this moment because my life is not safe in my own country. Please protect me and help me to stay in Hong Kong until my problem will be saved.”

12.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

13.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review and dismissed his application for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [25] of the CALL-1 Form:

“14. For his intended challenge of either decision of the Board, the Applicant would still be out of time, as order 53 rule 4(1)  of the High Court Ordinance, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15. If it is the earlier decision of the Board that he intends to challenge, the last day of the three-month period for him to file his Form 86 would fall on 8 July 2015 and he would be almost 3 years late, and if it is the later decision, then the deadline would be 15 May 2018, and the Applicant would only be 9 days late with his application. Either way, in considering whether to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16. In the Applicant’s case, as already noted a delay of almost 3 years with the earlier Board’s decision must be considered as extremely substantial and excessive, while for the second decision the delay would have been much less significant, but either way the Applicant did not provide any explanation. As such I am not satisfied that there is any good reason for his delay.

17. As for the merits, if any, of his intended application, as noted above the Applicant failed to put forward any proper ground for his intended challenge of either decision, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decisions, I do not find any reasonably arguable basis to challenge the finding of the Board.

18. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19. In the Applicant’s case, the Board already in its first decision of 8 April 2015 rejected his non-refoulement claim for the thorough and detailed analysis and reasoning set out in the decision referred to above, of which the Applicant never launched any challenge by any application for judicial review until perhaps now, and as noted above at such serious delay that I do not find any good reason or justification to extend time for him to do so.

20. As for the Board’s second decision refusing to allow the Applicant’s late filing of his appeal regarding his BOR 2 risk, the Board was in my view correct to find his procedural breach serious and substantial, and that there was no reason of any special circumstances that would make it unjust not to allow the late filing of his appeal.

21. While the Board may appear to have not taken account of the merits of his appeal in that decision, of which the Court of Appeal has held in Re Qasim Ali [2019] HKCA 430 to be necessary regardless of the procedural breaches or the lack of explanation therefor, the fact is that the Applicant’s non-refoulement claim on all other applicable grounds had earlier already been rejected by the Board, of which clearly were relevant matters of fact within the knowledge of the Board, and as the Applicant in his second appeal to the Board merely repeated the same claim in his late notice of appeal (see section 2 of his notice of appeal)  without any additional facts which may be relevant to his BOR 2 risk, there was therefore in my judgment simply nothing in the merits of his second appeal that the Board had not already considered and rejected in its earlier decision.

22. In any event, on the basis of the primary facts of the Applicant’s claim, and in the light of the scope and threshold of a BOR 2 claim, there is in my judgment simply no room for engaging the BOR 2 ground, and in the absence of any error of law or procedural unfairness in this decision of the Board being clearly and properly identified by the Applicant, I do not find any merits in the Applicant’s intended challenge of this decision of the Board either.

23. Furthermore, the fact is that it has been established by both the Director and the Board in their earlier decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

24. In the premises and having considered both decisions of 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 Applicant’s claim.

25. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either decision of the Board, and in the absence of any good reason for his delay in either case, I refuse to extend time and accordingly dismiss his leave application.”

Grounds for appeal

14.  In the Notice of Appeal filed on 22 December 2020, the applicant stated that:

“`I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.”

15.  In his skeleton submissions lodged on 12 May 2021, the applicant submitted that:

(1)  it is not safe for him to return to India;

(2)  the applicant is not satisfied with all the decisions against him.  These decisions ignored matters related to his case and were not transparent;

(3)  the decision makers wrongly assessed the situation in India.  They did not appreciate the threats to the applicant;

(4)  the applicant needs to stay in Hong Kong until his problems in India are resolved;

(5)  the police in India are corrupt and they torture and kill innocent people; and

(6)  it is difficult for the applicant to get justice in the corrupt environment of India.

16.  The applicant agreed by a letter of 22 December 2020 that the appeal could be heard by two judges.  We heard the appeal on 22 June 2021.

Discussion

17.  All of the grounds of appeal (except the one based on the alleged danger upon his return)  were not raised as grounds for judicial review before the court below. It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).

18.  As for the bare assertion that it is unsafe for him to return, we note that in its decision dated 8 April 2015, the Board dismissed the applicant’s assertions that it was unsafe for him to return.  The applicant failed to substantiate any public law error in the Board’s Decision and there is therefore no basis to challenge the Board’s finding in this regard.  This ground is therefore without merit.

19.  The applicant also claimed that he was not satisfied with the judge’s decision but he did not give any particulars or elaboration as to this ground.  This ground is also without merit.

20.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.