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

CAMP 102/2022, [2023] HKCA 1103

On Appeal From [2021] HKCFI 2448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 102 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 3555 OF 2019)

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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 K W Lung (“Judge”) dated 26 August 2021 refusing leave for the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“Board”) dated 29 November 2019.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 15 August 2018 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of India born in 1987.  He arrived in Hong Kong on 25 June 2010 but was refused permission to land.  He raised a torture claim[1] on the same day, but the claim was rejected on 15 July 2011.  His petition against that decision was refused on 25 August 2011.  On 3 March 2014, the applicant raised a non-refoulement claim on the ground that if returned to India, he would be harmed or killed by his neighbour Gurmukh Singh who had a dispute with the applicant’s father over the ownership of the land lying between their fields.  The details of his claim are set out at [12] to [18] of the Board’s decision.

3.  The applicant’s claim was assessed by the Director with reference to all the remaining relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 15 August 2018, the Director rejected the claim. 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 29 October 2019 at which the applicant gave evidence and answered questions from the Board.  The Board was impressed with the applicant’s oral evidence given at the hearing, and decided to proceed on the basis that his version of events articulated there was truthful.  The Board was prepared to accept that it was possible the applicant might face physical assault by the neighbour should he return to his village at that time.  The Board however noted that according to the applicant, the two sides were negotiating a settlement and that the applicant expected to be able to return safely at the end of the following year.  The Board also considered that the applicant could avoid any harm he would face upon returning by relocating to large cities in India such as New Delhi, Bengaluru or Kolkara, where his neighbour would not be able to find him.  The Board found that it would be neither unreasonable nor unduly harsh to require the applicant to relocate within India.  The Board therefore concluded that the applicant had failed to establish the requisite risk of harm upon refoulement.  Accordingly, in its decision dated 29 November 2019, the Board dismissed the appeal and affirmed the decision of the Director. 

The Judge’s decisions in the court below

5.  On 2 December 2019, 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.  He did not set out any ground for judicial review and merely stated that his life would not be safe in his own country.

6.  On 3 August 2021, however, the applicant filed an affirmation asking for leave to withdraw his application for judicial review because he would like to go back to India and it was safe for him to return.

7.  Accordingly, based on consideration of the papers alone, the Judge issued his decision on 26 August 2021, dismissing the application for leave to apply for judicial review in light of the applicant’s own stance.

8.  About 6 months later, however, the applicant filed a summons in the Court of First Instance on 18 February 2022 seeking an extension of time to appeal against the Judge’s decision of 26 August 2021. In the supporting affirmation of the same date, the applicant stated that when he filed an affirmation to withdraw his application, he genuinely thought that his problem had been solved and was eager to return to his family; about a month before his summons, however, his family confessed to him that they had lied to him and that in fact the frequency and intensity of his enemies’ visits had increased.

9.  On 25 March 2022, the Judge issued his decision in writing refusing to extend time on the ground that there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

10.  On 13 April 2022, the applicant filed a summons in this court, seeking to set aside the order of the Judge made on 25 March 2022 dismissing the summons below.  In the supporting affirmation, the applicant said that he was not trying to delay his departure from Hong Kong, that there were many errors in the Board’s decision, and that he did not understand the judgment completely.

11.  The applicant repeated these claims in his written submissions for the present application, and also stated that the authorities had not made reasonable arrangements to enable him to understand the judgments and had thereby deprived him of the right to seek further avenues of appeal.  He said the Judge failed to take into account his unique circumstances.

12.  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.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), there is a time limit of 14 days for an applicant to appeal to the Court of Appeal where an application for leave is refused by a judge, as was the case here even though the refusal of leave was based on the applicant’s own application to withdraw his application for leave.  The applicant was several months out of time in seeking to appeal.

14.  Further, the Judge’s decision was based on the applicant’s own indication that he wished to return to India and that it would be safe for him to do so.  It is difficult to see how it could be said the Judge’s decision was in any way erroneous.  The applicant now says that he had been misled by his own family into thinking that it would be safe for him to return.  This evidence was not before the judge.  Moreover, in the light of the evidence the applicant gave to the Board that a settlement with the neighbour was expected and that he could likely safely return to India in the following year, the latest assertion of the applicant that his family had misled him is of dubious value.

15.  In any event, in the present case, the risk of harm arising from the dispute with the neighbour was plainly a localised one, even taking the applicant’s case at its highest.  The Board rejected the applicant’s non-refoulement claim for the reasons explained above including that internal relocation would be a safe and viable option.  That was a conclusion that the Board, as the primary decision-maker, was entitled to come to for the reasons given in its decision.  The applicant has not raised any reason why that would not be fatal to his claim for non-refoulement protection on any view.

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 not even identified, let alone show a reasonably arguable case for establishing, 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.

18.  As to the complaints about lack of language assistance, raised for the first time in the materials filed in this court, 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.

19.  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.

20.  For these reasons we do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.