RE AMANDEEP SINGH

CAMP 18/2019

[2019] HKCA 647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 18 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1087/2017)

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J U D G M E N T

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

Introduction

1.  On 19 December 2018, Deputy High Court Judge Josiah Lam (“the Judge”) refused to grant an extension of time for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 23 February 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) rejecting the applicant’s non-refoulement claim.

2.  On 30 January 2019, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to appeal against the said decision of the Judge.

3.  By a summons dated 31 January 2019, the applicant renewed his application for leave to appeal before this Court.

Background

4.  The applicant is a national of India.  He entered Hong Kong on 27 May 2013 on the strength of his passport and was allowed to remain until 10 June 2013.  He overstayed and was arrested by the police on 25 June 2013.  He lodged a torture claim on 27 June 2013 and a claim for protection against risk of torture or cruel, inhuman or degrading treatment or punishment on 16 August 2013.  His claims were subsequently treated as a non-refoulement claim and assessed under the unified screening mechanism.

5.  The applicant’s claim was based on the fear that, if he returned to India, he would be killed by his creditor because he failed to repay the loan.  He also feared his friend’s family because he was accused of being involved in the death of his friend’s brother.  The factual background was succinctly summarized by the Judge in [1] – [10] of the Form CALL-1 ([2018] HKCFI 2765).

6.  By two notices of decision dated 4 March 2016 and 5 December 2016, the Director assessed the applicant’s claim on all applicable grounds and determined the claim against him.  The former covered the BOR 3 risk[1], persecution risk[2], and torture risk[3], and latter the BOR 2 risk[4].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 15 December 2016.  After hearing the applicant, the Board did not find the applicant to be a truthful witness.   The Board took the view that he had fabricated his claim in relation to the circumstances leading to his departure from India. The Board did not accept his evidence about events leading to the death of his friend’s brother.  Accordingly, the Board dismissed the applicant’s appeal/petition on 23 February 2017.

The Judge’s decision

8.  On 15 December 2017, more than 9 months after the date of the Board’s decision, the applicant applied to the court for leave to apply for judicial review.  According to the form 86, the intended judicial review was against the Director’s decisions, as well as the Board’s decision.  In Enclosure 2 attached to the form 86, the applicant advanced 8 grounds for judicial review in respect of the Director’s decision, and the one ground in respect of the Board’s decision.  The applicant’s complaints in respect of the Board’s decision were set out in [25] – [26] of the Form CALL-1.

9.  The Judge held an oral hearing on 16 May 2018.  During the hearing, the applicant said that he was not aware of the Board’s decision until he was informed by the Immigration Department of the same when he reported recognizance in April 2017.  He also said that he did not know the statutory time limit for applying leave for judicial review: see [30] of the Form CALL-1.

10.  At [18] of the Form CALL-1, the Judge applied the principle laid down by this Court in Re Moshsin Ali [2018] HKCA 549.  It was held that the decisions of the Director were not amenable to judicial review and the Judge would only consider the Board’s decision only in the leave application.

11.  Having considered the relevant case law and procedural rules, as well as the applicant’s explanation for the delay, the Judge refused to grant an extension of time.  The Judge held that there was no good reason for the delay, which was undue and substantial. The prejudice caused by the delay to the putative respondents was considered not insignificant.  Finally, for the reasons set out at [40] - [44], the Judge concluded that there was no merit in the intended judicial review:

“ 40. The Applicant complained the Adjudicator failed to make sufficient enquiry and failed to note he had no or limited options to bring his evidence since he was in custody at the immigration detention centre. The Applicant also said the Adjudicator failed to give him sufficient chance to arrange relevant evidence for his appeal.

41. The Director in his letter dated 23 November 2018 confirmed the Applicant was released on recognizance on 23 August 2013. He was only taken into custody again by the Immigration Department between 22 November 2017 and 4 January 2018. Thus, the Applicant was not in custody around the time when he attended the Board hearing on 15 December 2016. In any event, there was nothing to support the Applicant's claim that he had been hindered from proving his claim.

42. The Applicant said he was given only one week to prepare for his appeal. Again, that was bare assertion. In any event, he made no complaint to the Adjudicator or asked for adjournment during the Board hearing. He failed to prove he really needed more time to prepare for his appeal then.

43. The Applicant said he now had more documents from India to prove his case. However, he failed to justify why he could not have obtained them earlier. He also failed to prove those were crucial documents for his claim. I am satisfied the Applicant had been given sufficient time and chance to prove his case as much as he could.

44. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

Application for leave to appeal

12.  On 24 December 2018, the applicant applied to the court for leave to appeal against the decision of the Judge.  Neither the summons nor the supporting affirmation filed on the same date contained any grounds of appeal.  By a decision given on 30 January 2019 ([2019] HKCFI 276), Deputy High Court Judge Bruno Chan dismissed the summons on the ground that there was no prospect of success in the intended appeal.

Renewed application for leave to appeal

13.  On 31 January 2019, the applicant renewed his application for leave to appeal before this Court. Again, neither the summons nor the supporting affirmation contained any proposed grounds of appeal. 

14.  In the written submissions lodged on 15 February 2019, the applicant mentioned the corruption of the police in his home country and reiterated the risk that he would be tortured or killed if returned.

Legal principles

15.  In Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, it was held that the refusal to extend time for leave to apply for judicial review is interlocutory in nature. 

16.  Accordingly, Section 14AA of the High Court Ordinance (Cap 4) leave is required before an appeal can be brought against a refusal to extend time to apply for judicial review. Section 14AA(4) further provides that no leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard.

17.  In assessing the prospect of success of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases discussed in 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]. 

18.  For the purpose of this application, we only need to highlight the following salient principles:

(1)  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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, Rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

19.  In our view, the Judge has applied the correct legal principles in dealing with the applicant’s application for extension of time.  There is no reasonably arguable basis to challenge the Judge’s finding that the length of the delay was substantial and the applicant had no good reason for the delay. 

20.  Furthermore, in our view, the Judge was correct in holding that the applicant’s intended judicial review had no merit.  In the present case, the Board rejected the applicant’s appeal/petition on the ground that it did not consider the applicant to be a truthful witness.  Such a decision is within the province of the Board and the court will not interfere with the decision unless there is a public law ground for the court to do so.  Having reviewed under rigorous examination and anxious scrutiny, the Judge could not find any valid ground to intervene with the Board’s decision. 

21.  In this application, the applicant has not set out any ground to prosecute his intended appeal.  He merely stated that he could not go back to India because he might be tortured or killed if he returned.  He had already been disbelieved by the Board in that respect.

22.  In the circumstances, there is no reasonable basis to challenge the Judge’s conclusion as regards the lack of merit in the intended judicial review.

23.  The intended appeal against the Judge’s decision has no prospect of success.  The threshold in Section 14AA is not met. Accordingly, we refuse the application for leave to appeal and dismiss the applicant’s summons.

24.  Since the application is totally without merit, we further make an order under Order 59 Rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.