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

CAMP 179/2021

[2021] HKCA 1306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 179 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1851 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the decision of the Court):

INTRODUCTION

1.  This is a renewed application for an extension of time to appeal against the decision of Deputy High Court Judge K.W. Lung (“the Deputy Judge”) dated 18 June 2020, refusing to grant leave to the applicant to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 29 August 2018.  By that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 December 2017, rejecting his non-refoulement claim.

3.  Having considered the applicant’s summons and affirmation dated 20 May 2021 and his written submissions dated 6 July 2021, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The applicant is an Indian national.  He claims that if refouled, he would be harmed or even killed by his uncle, Balkar Singh, because he had a land dispute with him.  The details of his claim were set out in the decisions of the Director and the Board and summarised by the Deputy Judge in Form CALL-1 dated 18 June 2020, at [4] to [6].[1]

DIRECTOR’S DECISION

5.  By a Notice of Decision dated 27 December 2017, the Director rejected the applicant’s non-refoulment claim.  The Director took the view that the risk of the applicant being harmed or killed by his uncle if he returned to India was low.  The Director also considered that state protection was available and internal relocation was viable and that the applicant’s claim stemmed from a family land dispute without any official involvement.  The Director’s decision covered all applicable grounds, including torture risk[2], BOR 2 risk,[3] BOR 3 risk[4], and persecution risk[5].

BOARD’S DECISION

6.  The applicant appealed against the Director’s decision to the Board.  He attended an oral hearing before the Board on 3 July 2018.  On 29 August 2018, the Board dismissed his appeal.

7.  Having considered the applicant’s evidence, the Board did not accept his allegations regarding the land dispute with his uncle.  The Board also rejected the applicant’s claims that his uncle killed his father or that his uncle had made numerous attempts to harm him.  The Board, therefore, held that the applicant’s claim for non-refoulement protection failed on all applicable grounds.

THE DEPUTY JUDGE’S DECISION

8.  The applicant filed a Form 86 dated 5 September 2018 for leave to apply to judicially review the Board’s decision.  In his affirmation in support of his application, he did not set out any grounds of judicial review, nor did he say what error the Board had committed in coming to its decision.[6]

9.  The applicant filed no written submissions in support of his application.

10.  The Deputy Judge refused the application in his decision dated 18 June 2020,[7] and gave his reasons at [14] to [16] of the Form CALL-1 as follows:

“14. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision [makers] and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15. There is nothing from the applicant or from the Board’s Decision for this Court to interfere with the Board’s decision.

16. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

APPLICATION FOR EXTENSION OF TIME TO APPEAL

11.  On 3 July 2020, the applicant made an application for an extension of time to appeal against the Deputy Judge’s refusal of leave to apply for judicial review.[8]  The application for extension of time was refused on 18 March 2021 by Deputy High Court Judge C P Pang (“DHCJ Pang”), who did not accept the applicant’s explanation that he did not receive the Deputy Judge’s decision (see [2021] HKCFI 539 at [8] to [9]).  DHCJ Pang also held that the intended appeal was without merit:

“11. In the present case, the Board’s decision was mainly based on its adverse findings on the credibility of the applicant about his land dispute with his uncle. The Board did not accept that there was such a dispute; that his father was killed by his uncle; that his uncle had attempted to harm the applicant. Further, even if he had the fear as he alleged, it was not harsh for the applicant to relocate to other places in India. On the evidence before the Board, the findings were plainly open to the Board. Such findings were within [the] province of the Board, not to be interfered with, without errors or irrationality or procedural unfairness found by the Judge. The applicant did not set out any grounds in support of his application for judicial review. Having considered all the materials, the Judge found no basis to interfere with the decision of the Board and that there was no reasonable prospect of success for his intended judicial review.

12. The applicant has not identified any grounds of appeal or errors in the Judge’s decision. None could be ascertained from the papers or at the hearing.

13. Having considered the materials before me, I am of the view that the findings by the Board on the lack of credibility of the applicant and availability of internal relocation alternative are justified. I share the Judge’s view that the applicant’s intended judicial review was not reasonably arguable and that leave to apply for judicial review should be refused.”

12.  By summons dated 20 May 2021, the applicant renewed his application for an extension of time to appeal before this Court.

13.  In his affirmation dated 20 May 2021, the applicant did not provide any reasonable explanation for his delay but merely stated (once again) that he needed to give the Court a “more complete picture about [his] case”.

14.  In his written submissions lodged on 6 July 2021, the applicant repeated the basis of his non-refoulement claim.  He claimed that the Board failed to make sufficient enquiries and dismissed his appeal without any reason, and if he were refouled, his life would be in peril. Further, in his written submissions, he says he married a Hong Kong citizen and is currently awaiting his “independent visa” application to be processed.

DISCUSSION

15.  When considering whether to extend the time for appealing against a decision refusing to grant leave to apply for judicial review, the court will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.  Even if an applicant’s explanation for the delay is not accepted, the court would still examine if the intended appeal has merit.

16.  In assessing the merit of an intended appeal, the applicable principles are as follows (Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]):

(1)   The role of the court in a judicial review is not to provide a further avenue of appeal.  Though in non-refoulement cases, an enhanced standard will be adopted in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board as a primary decision-maker.  Assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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 of the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments that 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 judge’s decision and would only reverse that decision if an applicant 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)   The Court of Appeal would only examine the judge’s decision 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 Court of Appeal’s role to examine the Board’s decision afresh as if it is a fresh application for judicial review.

17.  As observed by DHCJ Pang, the court record shows that the decision refusing to grant the applicant leave to apply for judicial review was sent on 13 July 2020 to the applicant’s last reported address.[9]  The applicant’s explanation that he did not receive the decision was no more than a bare assertion.  DHCJ Pang was entitled to hold that the applicant failed to give any reasonable explanation for the 1-day delay in bringing his intended appeal.  But as noted by DHCJ Pang, the delay is insignificant.

18.  In light of the minimal delay, it is more significant to look at the merits of the intended appeal.

19.  The applicant’s assertion that he has a visa application on foot is irrelevant to the present application for extension of time to appeal.

20.  This Court will only reverse the decision of the Deputy Judge refusing to grant leave to apply for judicial review if the applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

21.  The applicant has not shown any such errors or raised any viable grounds of appeal in his summons, affirmation or written submissions.  There is no prospect of success in the applicant’s intended appeal.

DISPOSITION

22.  The application for extension of time to appeal is refused, and the applicant’s summons of 20 May 2021 is dismissed.