RE AMANPREET SINGH

CACV 569/2021

[2022] HKCA 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 569 OF 2021

(ON APPEAL FROM HCAL NO. 1359 OF 2021)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

1)  The appeal

1.  This is an appeal against the decision dated 7 December 2021 of Deputy High Court Judge K W Lung who refused to extend time to the applicant to apply for leave to commence judicial review against the decision of the Torture Claims Appeal Board (‘the Board’)  on 16 January 2020 and dismissed his application.  Form 86 of the applicant was filed on 28 September 2021 which was well over the 3-month time limit (over one year and five months).  The applicant was absent at the hearing of his appeal. We will deal with the appeal on paper.

2)  Background

2.  The applicant is a national of India.  He entered Hong Kong in August 2010 as a visitor but overstayed.  He raised a non-refoulement claim in December 2010 on the basis that if he returned he would be harmed or killed by two men who have forcefully occupied his family’s farmland.

3.  The details of the applicant’s claim have been summarized by the Judge at [4] to [5] of the CALL-1 Form.

3)  The Director’s Decisions

4.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 28 May 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution (‘the Director’s First Decision’).

5.  The Director decided against the aplicant’s right to life claim on 5 May 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decisions

6.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 23 August 2016, the Board dismissed the applicant’s appeal against the Director’s decision on 8 March 2017 (‘the Board’s First Decision’).

7.  After the statutory time limit for the applicant to lodge an appeal against the Director’s Further Decision had lapsed, the applicant appealed against the Director’s Further Decision. 

8.  The Board held that it had every reason to believe that after the applicant received the Director’s Further Decision, he was able to file his appeal within the time limit.  The Board did not accept his explanation for the late filing of his appeal.  In any event, the Board held that even if it accepted the applicant’s late filing, there was no prospect of the appeal succeeding.  He had not raised anything new to what he had already raised in his application which led to the Director’s First Decision.  Accordingly, the Board refused to accept the late filing of the appeal, dismissed the appeal and confirmed the Director’s Further Decision (‘Board’s Second Decision’).

5)  Decision of the Judge

9.  The applicant filed a Form 86 with supporting affirmation before the Judge.  The applicant sought leave for judicial review against the Board’s Second Decision only.

10.  The Judge assessed the applicant’s case and held that the delay was serious.  He held that the Board’s Second Decision on BOR 2 had taken into account the findings of the Board’s First Decision in relation to BOR 3, torture and persecution risks.  There was no error of law or procedural unfairness in the Board’s Second Decision.

6)  Grounds of appeal

11.  The applicant stated in his notice of appeal that he will face hardship if he is to be repatriated.  He stated that the Board relied on source of information which is not officially recognized or is simply hearsay.  He stated that the Judge did not scrutinize his application.  There was a lack of credible source of information.

12.  The applicant in his written submissions referred to the general principles on non-refoulement without elaborating or specifying how those principles apply to the particular facts or circumstances of his case.  They are bare assertions against the analysis of the Judge without basis.

7)  Our view

13.  We will repeat the approach of this Court in dealing with cases of this nature :

(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 claims cases, the Court will adopt an enhanced standard 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.  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 their decisions.

(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.  In the determination for 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 a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.  In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground for his appeal.

15.  We see no error in the Judge’s decision. Accordingly, the appeal is dismissed.