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

CACV 214/2022, [2024] HKCA 160

On Appeal From [2022] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 214 OF 2022

(ON APPEAL FROM HCAL NO 2250 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 appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 19 May 2022[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 28 March 2017.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 11 February 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1988.  He left India and landed in Hong Kong on 30 December 2013, on the strength of his Indian passport for the purpose of sightseeing, but he was refused permission to land.  On 1 January 2014, the applicant submitted his written request to raise a non-refoulement claim in Hong Kong.  His formal non-refoulement claim form dated 12 April 2014 was later received by the Immigration Department.  The applicant’s claim was made on the basis that if he returned to India, the Binda family, an influential family in his home village, would harm or kill him due to a road traffic accident where the son of the Binda family was injured by the applicant.  The factual background of the applicant’s claim was set out at [16. (i)] to [16. (xiii)] of the Board’s decision dated 28 March 2017.

3.  By notice of decision dated 11 February 2015, the Director assessed the applicant’s claim in relation to three applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] and torture risk.[4]

4.  The applicant appealed to the Board against the Director’s decision dated 11 February 2015.  An oral hearing was held on 27 July 2016, during which the applicant was invited to supplement what he had already stated, but he chose not to give evidence as he stated that the information previously given was still the same.  Having carefully considered all the evidence, the Board found that the applicant had exaggerated his case and his claim for non-refoulement was not a genuine claim.  It found that his intention was to stay in Hong Kong and not for non-refoulement protection, that he was not killed nor sustained serious injury from the previous alleged attacks by people of the Binda family when they could have done so, that it was illogical for someone to say out loud that they were planning a serious attack on the applicant and for the applicant and his family to not report the serious threats by the Binda family to the police, and that he was able to stay in different places in India for a total period of more than 9-10 months uneventfully.  Although there was COI which supported the applicant’s assertion of government and police corruption, the Board also found COI that showed that the Indian authorities had measures in place to improve effectiveness and to monitor the conduct of the police and government officials, not to mention there were other alternative avenues to seek protection in India.  It was the applicant and his family’s choice to not seek assistance from the police.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to India. It found there was in fact no real risk of harm if the applicant returned to India, because the applicant was inflicted only with minor injuries, there was no evidence of state involvement, the dispute between the applicant and the Binda family was purely personal, and state protection and internal relocation would be available.  The Board found that Binda was not a political party member or government official and that the applicant left India on the strength of his own passport without detainment or questioning, so he was not a target of the state.  Moreover, the Board further found that the influence of the Binda family, if any, was localized, so that after the applicant’s relocation to the capital, Delhi, it would be extremely difficult if not impossible for the Binda family to locate him and it would not be unduly harsh for an able-bodied young man with driving experience to relocate to anywhere in India.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to India.  By its written decision dated 28 March 2017 (“1^st Board Decision”), the Board dismissed the applicant’s appeal in respect of the applicable grounds and confirmed the Director’s decision dated 11 February 2015.

7.  Having invited further information and having received a letter from the applicant dated 18 April 2017 simply seeking protection against BOR 2 risk, by notice of decision dated 5 May 2017, the Director assessed the applicant’s claim in relation to the applicable risk of BOR 2 risk[5] and determined it against him.

8.  The applicant appealed to the Board against the Director’s decision dated 5 May 2017 by way of notice of appeal/petition on 31 July 2017 out of time.  As the applicant did not provide any satisfactory explanation or documentary proof in support of his delay and a delay of over 2 months was an inordinate delay, the Board found no valid grounds or extenuating circumstances to exercise his discretion to allow the applicant’s late filing of the notice of appeal/petition under Section 37ZT of the Immigration Ordinance (Cap.115). Accordingly, the Board dismissed the applicant’s petition in its decision dated 11 October 2018 (“2^nd Board Decision”).

The Judge’s decision in the court below

9.  On 16 October 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of a decision dated 29 December 2017.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation. In the latter, the applicant referred to a “notice of decision” and “notice of appeal” both dated 29 December 2017 and said that he wanted to refute the decision made by the Director dated 29 December.  Also, he annexed a letter issued by the Board to the applicant dated 11 October 2018, which was the cover letter for the 2^nd Board Decision sent to the applicant, which confirmed that the Board had refused the applicant’s late filing of the notice of appeal/petition.

10.  As there was no document with the date “29 December 2017” on file, the Judge treated this to be an error on the date of the Board’s decision and rectified it to refer to the 1^st Board Decision dated 28 March 2017.  No reasoning was provided on how the Judge determined that the applicant was seeking to challenge the 1^st Board Decision.

11.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 19 May 2022, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [19] of the Form CALL-1 as follows:

“ 13. As mentioned in paragraph 1, the applicant’s application is seriously late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …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.’

17. Since the applicant refused to give evidence, the Board had considered the evidence before it and found the facts of his case, which the Board was entitled to do. The applicant has raised no valid ground to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Appeal to this Court

12.  On 25 May 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that the Judge did not find any error but he could show many errors, that he should have a chance to show the Board’s error and that his application should not have been refused.

13.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.  

14.  On 8 June 2022, the applicant lodged written submissions in which he stated that he came to Hong Kong to save his life, that his life was threatened in India, that his enemy was powerful and influential, and that the government and police were also his enemies.  He further stated that he had informed his whole story to the Director, but both the Director and the Board rejected his claim.  In addition, the applicant claimed that he did not receive any letter from the lower court, so he failed to apply for judicial review.  As his application for extension of time was also dismissed, he requests this Court to allow such extension of time.

Discussion

15.  In assessing the merits of the 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

16.  In the present case, the Judge found that the applicant had made an error, by referring to the date of 29 December 2017, in reference to the date of the 1^st Board Decision.  The Judge designated the decision challenged to be the 1^st Board Decision.   It is however not clear why the Judge found that the applicant wished to apply for leave to judicially review the 1^st Board Decision.  There did not appear to be any clarification sought from the applicant or any reason provided on how the designation came about.  In the body of the supporting affirmation to the Form 86, the applicant continued to make reference to the date of 29 December 2017, but he had actually annexed a copy of the letter issued by the Board to the applicant dated 11 October 2018.  That letter is the cover letter of the 2^nd Board Decision.  As such, it seems to us that the applicant should be taken to have sought leave to apply for judicial review of the 2^nd Board Decision.

17.  Further, the Form 86 was filed on 16 October 2018 which was only a few days after the 2^nd Board Decision and well within time for challenging that decision.  The 1^st Board Decision in contrast was dated 28 March 2017 and the Form 86 would be more than 15 months out of time if it sought to challenge that decision.  There was no reason for inferring that the applicant wanted to make an application that was massively late rather than one which was within time.

18.  For these reasons, we are of the view that the Judge erred by incorrectly identifying the 1^st Board Decision to be the decision of which the applicant sought leave to apply for judicial review and by proceeding to consider the applicant’s application on the basis that it was a very late attempt to challenge the 1^st Board Decision.  It follows, with respect, that the Judge had altogether failed to consider the applicant’s application for leave to apply for judicial review of the 2^nd Board Decision.  Accordingly, we consider that the Judge’s decision should be quashed and the matter remitted to the Court of First Instance for consideration as an application for leave to apply for judicial review of the 2^nd Board Decision.

19.  The above matter was not directly raised by the applicant.  Nevertheless, the Court of Appeal has a discretion, albeit not one to be exercised lightly, to allow new grounds to be canvassed in the interest of justice: see for example, Re MD Zahidur Rahman Manik [2018] HKCA 766 at [13].  In the circumstances of the present case, we take the view that the applicant’s appeal should be allowed for the reasons set out above.

20.  Accordingly, we allow the appeal and make an order that the Judge’s decision dated 19 May 2022 be set aside, and the applicant’s application for leave to apply for judicial review of the Board’s decision dated 11 October 2018 be remitted to the Court of First Instance for consideration.

21.  We make no order as to costs.