SANDHU AMANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 104/2021

[2021] HKCA 1295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 104 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 647 OF 2018)

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JUDGMENT

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

INTRODUCTION

1.  By summons dated 8 April 2021, the Applicant applied to this Court for leave to appeal against the decision dated 1 April 2021 of Deputy High Court Judge Bruno Chan (“Deputy Judge”) refusing to grant him an extension of time (“EOT Decision”) to appeal against the Deputy Judge’s earlier decision dated 22 September 2020 refusing his application for leave to apply for judicial review (“Leave Decision”).

2.  The Applicant’s intended judicial review is directed against the decision dated 20 March 2018 of the Torture Claims Appeal Board (“Board”), and the decision dated 21 July 2017 of the Director of Immigration (“Director”).  The Director rejected the Applicant’s claim for non-refoulement protection, and the Board dismissed the Applicant’s appeal against the Director’s decision.

3.  Having considered the papers, we are of the view that it is appropriate to determine the Applicant’s summons of 8 April 2021 without a hearing under Order 59, rule 14A of the Rules of the High Court (“RHC”).

BACKGROUND

4.  The Applicant is a national of India.  He entered Hong Kong on 11 June 2014 as a visitor with permission to remain until 25 June 2014.  He overstayed in Hong Kong and was arrested by the police on 9 September 2015.  He was subsequently referred to the Immigration Department for investigation.  He then raised a non-refoulement claim.  His claim was based on an alleged fear that, if he were to return to India, he would be harmed or killed by his uncle with whom he had a land dispute.  The factual details of the Applicants’ claim were summarized by the Deputy Judge in [2] to [4] of the CALL-1 Form ([2020] HKCFI 2372).

DIRECTOR’S DECISION

5.  By a Notice of Decision dated 21 July 2017, the Director rejected the Applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR 2 risk[2], BOR 3 risk^[3], and persecution risk^[4]. On the basis of the low intensity and frequency of past ill-treatment from his uncle, the Director assessed the risk of harm against the Applicant as low. Further, as the dispute was a family dispute, the Director considered that there was no official involvement, and state protection would be available to the Applicant.  The Director also considered that internal relocation was viable.

THE BOARD’S DECISION

6.  The Applicant appealed to the Board against the Director’s decision.  The Board dealt with the appeal on paper.  By its decision dated 20 March 2018, the Board dismissed the appeal.  The Board accepted the facts claim by the Applicant, and his claimed fear of harm and threats from his uncle.  However, it found no evidence of any official involvement in the dispute, and considered that state/police protection was available to the Applicant.  The Board also considered that internal relocation was viable.

THE LEAVE DECISION

7.  On 16 April 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of both the decisions of the Director and the Board.  The single ground of judicial review, advanced in his supporting affirmation also of the same date, was that it was procedurally unfair and unreasonable for the Board to reject his case without holding any oral hearing to enable him to explain his case and the situation in his home country.

8.  On 10 July 2018, the Applicant came before Deputy High Court Judge Josiah Lam (“DCHJ Lam”).  The Applicant repeated his complaint that he was not given any oral hearing before the Board, but conceded that he was able to explain his case and the situation in his home country before the Director.  When he was asked to make further submissions on his complaint, he replied that he had nothing further to say.  DHCJ Lam reserved his decision.

9.  On 19 September 2018, before DHCJ Lam handed down his decision, the Applicant filed a Notice of Discontinuance of his application for leave to apply for judicial review leave.  The Notice of Discontinuance was noted by the DHCJ Lam and no further action was taken.

10.  One year and eight months later, on 19 May 2020, the Applicant issued a summons to apply to “dismiss” his Notice of Discontinuance and resume his application for leave to apply for judicial review.  The leave application was reinstated by the Deputy Judge, but was refused by the Leave Decision.

11.  At the hearing before the Deputy Judge, the Applicant confirmed his reliance on the single ground that it was procedurally unfair and unreasonable for the Board not to conduct any oral hearing of his appeal.  However, when invited by the Deputy Judge to explain his case and the situation in his home country, the Applicant merely relied on what had been stated in his affirmation and had nothing further to add.

12.  The Deputy Judge referred to ST v Betty Kwan [2014] 4 HKLRD 277 where the Court of Appeal held that there is no absolute right to an oral hearing as it must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.

13.  The Deputy Judge rejected the Applicant’s application for leave to apply for judicial review for the following reasons (CALL-1 Form [2020] HKCFI 2372):

“15. As noted above, the Board did explain in [4] of its decision that it accepted that the Applicant had already set out his case clearly in the materials provided to the Director and for which he had attended screening interview before an immigration officer during which he had had an opportunity to explain himself on all matters, and that on the facts of the Applicant’s case [the Board] did not take issue with the credibility of his claim. Accordingly, it was entitled to find, and correctly in my view, that it was not necessary in the circumstances to hold any oral hearing for the Applicant’s appeal, and despite being given an opportunity to do so not just before Deputy Judge Lam] but also before me, the Applicant did not make any further representation or submit any additional materials regarding his claim or situation about his home country which he would have made to the Board if he were given an oral hearing before the Board.

16. In the premises the Applicant has failed to demonstrate that an oral hearing before the Board would provide any real benefit for his case, or any suggestion that he has suffered any real prejudice from the lack of oral hearing before the Board.  As such and in the circumstances I do not find this ground or complaint of the Applicant reasonably arguable for his intended challenge.”

14.  With reference to cases including Nupur Mst v Director of Immigration [2018] HKCA 524, the Deputy Judge held that judicial review does not operate as a rehearing of a non-refoulement claim. The court will not usurp the decisions of the Director and the Board, who are the primary decision makers, unless there are clearly identified legal error or procedural unfairness or irrationality in their decisions.  The Deputy Judge went on to hold:

“18. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THE EOT DECISION

15.  On 15 October 2020, the Applicant applied for an extension of time to appeal against the Leave Decision as he was out of time by about 9 days.  By the EOT Decision, the Deputy Judge refused to grant the extension of time sought by the Applicant.  The Applicant’s explanation for the delay, namely, that he did not receive the Leave Decision until he was already out of time, was rejected.  The Deputy Judge nevertheless went on to consider the merits of his appeal ([2021] HKCFI 744):

“6. However, the applicant did not put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable in his summons, while in his supporting affirmation he complained that the court failed to make arrangements to enable him to understand the content of the decision thereby depriving him of the right to seek further avenues of appeal which cannot of course be accepted [as] a valid or proper ground to appeal against that decision, while at the hearing of his summons he merely asked that his claim be reconsidered without putting forward any proper ground for his intended appeal. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.

7. In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.”

APPEAL AGAINST THE EOT DECISION

16.  By summons dated 8 April 2021, the Applicant sought leave from this Court to appeal against the EOT Decision.  In his affirmation dated 8 April 2021 and in his written submission dated 24 May 2021, he set out his complaints, which can be summarised as follows:

(1)   the Deputy Judge did not take all relevant circumstances into account;

(2)   the Deputy Judge was biased;

(3)   not being proficient in English, he was not provided with language assistance so that he was deprived of the opportunity to understand the decisions or judgments, or to raise proper grounds of appeal;

(4)   he did not have legal representation before the Board and the Deputy Judge; and

(5)   his case was not determined fairly and he sought a re-hearing.

DISCUSSION

17.  The Court of Appeal in Farrukh Zaib [2020] HKCA 408, at [21], held that although it is technically possible to appeal against a lower court’s decision refusing an extension of time to appeal, it is more appropriate to renew the application for extension of time before the Court of Appeal.  The Applicants’ summons of 8 April 2021 is therefore treated as a renewed application to this Court for extension of time to appeal against the Leave Decision given on 22 September 2020.

18.  The Court of Appeal further held in Farrukh Zaib [2020] HKCA 408, at [22] to [23], that in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of 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 delay is not accepted, the court would still examine if he has merit in his intended appeal.

19.  As the Deputy Judge observed, the Leave Decision was sent to the Applicant’s last reported address on 22 September 2020 without being returned through undelivered post.  The Applicant’s explanation that he did not receive the decision was no more than a bare assertion.  We agree with the Deputy Judge that the Applicant did not provide any reasonable explanation for the 24 days’ delay in bringing the intended appeal.

20.  On the merit of the appeal, it will be noted that, before the Deputy Judge, the Applicant only relied on the ground that he was not given an oral hearing by the Board.  The Deputy Judge correctly identified the applicable principles and held that there was no absolute right to an oral hearing.  Having considered the Applicant’s case and the Board’s decision, the Deputy Judge rejected this ground.  The Applicant has failed to identify any error in the Deputy Judge’s reasoning.

21.  As for the complaints now mounted by the Applicant, some of them, such as the lack of language assistance for him to understand the decisions or judgments thereby depriving him of the right to appeal, have already been considered by the Deputy Judge in the EOT Decision and were correctly rejected.

22.  Regarding the complaint that he did not have legal representation before the Board and before the Deputy Judge, the Court of Appeal has held that there is no absolute right to free legal representation at all stages of non-refoulement claim proceedings (Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176).

23.  The Applicant had the benefit of legal representation in presenting his case to the Director.  As for the hearing before the Board, it accepted the facts of the Applicant’s case and decided not to hold an oral hearing.  Before DHCJ Lam and before the Deputy Judge, the Applicant was given an opportunity to make representation and submit additional materials.  The Applicant’s claim was fairly considered and there was nothing amiss from the lack of legal representation in the appeal process.

24.  His request for a re-hearing is not a valid ground of appeal, as neither a judicial review nor an appeal to this Court is a re-hearing of his non-refoulement claim.  This Court will only reverse the Deputy Judge’s decision if he has made errors of law, or failed to take account of relevant matters or was otherwise plainly wrong (Farrukh Zaib [2020] HKCA 408 at [24]).

25.  The remainder of the Applicant’s complaints are general assertions of failure to consider relevant circumstances, bias and unfairness, without any particulars.  Such general assertions do not constitute viable grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]).

26.  As the Applicant has failed to identify any reasonable ground of appeal, leave to appeal out of time is refused.  The Applicant’s summons dated 8 April 2021 is accordingly dismissed.