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

CAMP 41/2022, [2024] HKCA 121

On Appeal From [2021] HKCFI 3265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 41 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2839 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 Suffiad (“Judge”)  dated 11 November 2021[1] refusing to grant leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 3 December 2018. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 9 February 2018 rejecting his non-refoulement claim.

2.  On 31 January 2022, Deputy High Court Judge To refused to extend time for the applicant to appeal against the Judge’s decision of 11 November 2021.

Background

3.  The applicant is a national of India born in 1991.  He had entered Hong Kong as a visitor on 15 November 2014 on the strength of his Indian passport and was permitted to stay until 29 November 2014.  He overstayed and surrendered to the Immigration Department on 15 September 2015.  The applicant’s formal non-refoulement claims form dated 3 January 2018 was submitted on the basis that he would be harmed or killed by his two uncles, his three cousins and the head of the village committee, Avtar Singh, due to a land dispute, if he was refouled to India.

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]  By a notice of decision dated 9 February 2018, the Director rejected the claim. 

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 10 September 2018, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 3 December 2018, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [23] to [29] of the Form CALL-1:

“  23.  On the above findings, the Board came to the view that on the evidence found, the Applicant’s uncles and cousins were private individuals and not public officials acting in any official capacity in the context of the circumstances claimed by the Applicant to be at risk of being subjected to harm. (see para [57] of the Board’s decision).

24.  As for the Applicant’s claim that the police would not assist him when the matter was reported to police, the Board took the view that there may be some police officers in the Applicant’s local area who may be subject to the influence of persons with connection but that is a far cry from saying that generally the police in India would deliberately withhold protection from the Applicant or would fail to prevent, investigate, prosecute and punish such ill treatment by the uncles and cousins. (see para [58] of Board’s decision)

25.  Accordingly, the Board found that the harm which the Applicant feared from his uncles and cousins did not come within the definition of torture in section 37U(1)  of the Immigration Ordinance (see para [59]).

26.  As for BOR 3 risk, the Board found on the evidence that the Applicant would suffer a small but real risk and that the Applicant would suffer mistreatment (which would constitute CIDTP)  if he returned to his home in the foreseeable future (see para [67] of the Board’s decision)  but when taking into account state protection and internal relocation (which the Board found to be available to the Applicant), the Board came to the conclusion that there are no substantial grounds to believe that the Applicant faced a real risk of being subjected to CIDTP if he returned to India (see paras [68] to [72] of Board’s decision).

27.  In so far as the persecution risk is concerned, the Board again accepted on the evidence that the Applicant faced a real risk of being subjected to CIDTP from his uncles and cousins if he returned home in the reasonably foreseeable future (para [76] of Board’s decision).  However, the evidence also showed that the reason for his relatives wanting to harm him were for purely financial and personal reasons and not because of his race, religion, nationality, political opinion or membership of a particular social group. (para. [77] of Board’s decision).  Moreover, the Board did not accept that the police force in India or the state of India more generally would deliberately withhold protection to the Applicant as regard his uncles and cousins and that the COI information showed an appropriate system of criminal law and justice system in India which is sufficient to protect the lives and safety of its citizens. (paras [79] to [80] of Board’s decision).  The Board also took account of the availability of internal relocation to the Applicant and concluded that it cannot accept that the Applicant has a well-founded fear of persecution in India.

28.  As for BOR 2 risk, the Board did not accept that the Applicant faced a real risk of being subjected to the death penalty or being arbitratily deprived of his life in any of the claimed circumstances or for any other reason.  Thus his claim for non-refoulement protection on the ground of BOR 2 risk was not substantiated.

29.  Accordingly, the Board refused the Applicant’s appeal and confirmed the decision of the Director.”

The Judge’s decisions in the court below

6.  On 11 December 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 supporting affirmation, the applicant stated that he wanted to apply for judicial review of the Board’s decision and that the decision was unfair and unreasonable.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 11 November 2021, the Judge issued his decision to refuse to grant leave to apply for judicial review.  The reasons were set out in [32] to [37] of the Form CALL-1 as follows:

“ 32. In the present case, the Board did not take issue with the personal and family background of the Applicant. It further accepted that there was a land dispute between the Applicant’s family and the Applicant’s uncles and cousins and that intimidation, threats and some harm had been caused to the Applicant by his cousins.

33. The Board’s findings that state protection and internal relocation were available to the Applicant and that there was no state or official involvement in respect of the threats intimidations and harm caused to the Applicant from his cousins are all findings which are well within the province of the Board to make.

34. The present complaint raised by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board.

35. Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered all the four available grounds on which this non-refoulement claim is brought, separately and distinctly and dealt with the merits of each limb individually.

36. The decision reached by the Board cannot be said to be in any way unreasonable. Nor can the court see any error of law, procedural unfairness or irrationality in the decision of the Board. There is no reasonable arguable basis to challenge the findings of the Board.

37.  For the reasons given, there are no prospect of success in the Applicant’s intended application. Accordingly, the court refused to grant leave for judicial review.”

8.  The applicant did not appeal within the 14-day period prescribed by the Rules of the High Court but instead filed a summons on 9 December 2021 together with a supporting affirmation to apply for extension of time to appeal against the Judge’s decision dated 11 November 2021.  In his affirmation, the applicant explained the reason for his delayed application was that he had never received the Judge’s decision or the corresponding order.  His grounds of appeal consist of assertions that the Judge’s decision was unfair, unreasonable and fraught with irrationality.  On 31 January 2022, Deputy High Court Judge To issued his decision in writing refusing to extend time for appeal 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 on 7 February 2022, the applicant made an application for leave to “further appeal in the Court of Appeal against the order of High Court on 31 January 2022” and he requested an oral hearing for this application.  We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 11 November 2021 refusing leave for judicial review. 

10.  In the applicant’s supporting affirmation, he stated that he did not know English and court procedure and that he did not agree with “the decision made [by] authorities” without any further elaboration.

11.  In accordance with the directions of the Registrar of Civil Appeals dated 7 February 2022, the applicant had lodged written submissions on 21 February 2022.  He stated that he disagreed with the decisions of the Director and the Board, that his case was not determined fairly, that there was no proper and fair mechanism to allow claimants to understand their own claims, that there was a lack of legal and language assistance, that there was procedural unfairness in his case, that he was never granted any hearing in court throughout his case, and that there is a discriminatory attitude towards non-refoulement claimants by way of quick disposal of their non-refoulement claims.

12.  Prior to the decision of the Judge on 11 November 2021, the lower court had inquired with the applicant whether he requested an oral hearing or not by way of letter dated 18 May 2021 and  it appears there was no reply from the applicant in writing or otherwise on court record.  If the applicant did not request an oral hearing at that juncture for consideration of his application for leave to apply for judicial review of the Board’s decision, he cannot now raise complaint that there was no oral hearing in his case.  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

13.  The applicant was late for about 2 weeks when he filed his summons on 9 December 2021.  In his supporting affirmation, the applicant stated that he never received the decision of the Judge dated 11 November 2021 due to change of address.  As this is not a lengthy delay, we are prepared to focus on the merits of his intended appeal.

14.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, 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 of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had heard the applicant, assessed his evidence and provided detailed reasons in dismissing the appeal.  Although the Board largely accepted most of the applicant’s factual claims on past events, it considered that the applicant’s risk of harm did not amount to the requisite threshold of any of the relevant risks.  Despite the Board accepted that there was a small, though real, risk that the applicant would suffer mistreatment constituting cruel, inhuman or degrading treatment or punishment, it did not accept that his uncle’s political connections would affect the availability of reasonable state protection and reasonable and safe relocation, and thus none of the grounds of non-refoulement were substantiated.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  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 or even identify any such public law grounds.

17.  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 grounds to show how the Judge is said to have erred in dismissing his application for leave to apply for judicial review.

18.  It is well established that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings: see Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10]. The Applicant was legally represented in the completion of his non-refoulement claim form and during the vetting process of the Director, which contained the same factual claims relied upon by the applicant in the subsequent processes. We do not find the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness.

19.  As to the complaints about lack of language assistance, as this court has repeatedly held, the high standard of fairness required by law does not necessarily require that interpretation service be made available at any time the applicant desires: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

20.  We have also noted that all the documents filed by the applicant below and in this court were written in English, suggesting that he is either conversant with the English language or has had access to language assistance where necessary.  We do not accept his assertion that the lack of language assistance has rendered the process unfair.

21.  In conclusion, we share both judges’ views that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 7 February 2022 is accordingly dismissed.