RE ROSHAN SINGH

CACV 522/2020

[2021] HKCA 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 522 OF 2020

(ON APPEAL FROM HCAL NO. 2022 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 21 September 2020 in HCAL 2022/2018 refusing to extend time for the applicant to apply for leave to judicial review the decision of Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 26 May 2017 in which the Board confirmed the decisions made by the Director of Immigration (“the Director”) dated 20 July 2016 and 7 April 2017.  The application for leave to apply for judicial review was also dismissed.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 3 February 2021, the applicant shall lodge with the court two sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 7 April 2021 (due to Easter holidays).  Despite the court letter sent to the applicant on 4 February 2021 informing him of the said directions, he only filed his skeleton arguments on 15 April 2021.  In our view, the delay of 8 days is not insignificant given the imminent hearing day fixed for 3 May 2021.  On the absence of any good reason for the delay, we will not accept the late lodging of the skeleton arguments.  The Registrar further directed that in the event the applicant failed to lodge his skeleton arguments as directed, he shall be deemed to have waived his right to have an oral hearing for this appeal.  As it is appropriate to do so, this Court will proceed to consider this appeal on paper. 

Background

3.  The applicant is a national of India who arrived in Hong Kong on 24 December 2012 with permission to remain as a visitor up to 7 January 2013.  He did not depart and instead overstayed and was arrested by police on 12 September 2013.  He was then referred to the Immigration Department for investigation and on 15 September 2013, he raised a non-refoulement claim by way of written representation on the basis that if he were to return to India he would be harmed or killed by certain local supporters of rival political party Shiromani Akali Dal (“SAD”) as he is a supporter of Indian National Congress party (“INC”).  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 2344.

4.  By the Notice of Decision and Notice of Further Decision dated 20 July 2016 and 7 April 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  The applicant lodged an appeal to the Board against the Director’s decisions, and for which he attended an oral hearing on 18 May 2017.  By its decision dated 26 May 2017, the Board dismissed the appeal.  In the reasons set out at [36] to [38] of the decision, the Board accepted the applicant’s claim of being a supporter of INC at that time but found inconsistencies and discrepancies in his evidence of being threatened and harassed by those local SAD supporters and thus did not accept his claimed fear of harm from them upon his return to India.  The Board further found that any such risk would be further reduced or negated by the fact that he was no longer a supporter of INC and that there would be no further reason for those SAD supporters to have any interest in him after all these years.  For the aforesaid reasons, his claim for non-refoulement protection failed on all applicable grounds.   

6.  The applicant only filed the Form 86 on 24 September 2018.  Pursuant to Order 53 rule 4(1) of the Rules of the High Court (Cap. 4A), the application for leave to apply for judicial review must be made promptly and in any event within three months from the date when the grounds for the application first arose.  The applicant was late for 13 months.  In his Form 86, he sought leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge (as duly summarised by the Judge at [11] of the CALL-1 Form):

(1)  The Director and the Adjudicator reached their decisions wrongly as unfair or unreasonable in assessing his non-refoulement claim.

(2)  The Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his claim as well as his appeal.

(3)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case which led to an unfair outcome of rejecting his claim.

(4)  The Director failed to take into account of the fact that he was tortured at the behest of the state law enforcement agencies and politicians for which the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

(5)  The Director failed to consider or give enough weight to those listed relevant COI which supported his aversions that the police in his country would not be able to protect.

(6)  The Director failed to recognize that corruption and incompetency of the administration in his home country were serious problems as reported by various human rights organizations which stated testament to his assertions which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void.

(7)  The Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law.  

The Judge’s decision

7.  By the CALL-1 Form dated 21 September 2020, the Judge refused to extend the time to the applicant to apply for leave for judicial review and dismissed the leave application.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [14] – [19] for his decision:

“14.  In the Applicant’s case, a delay of 13 months must be considered very substantial and excessive, for which he was unable to provide any explanation in his affirmation or at the hearing of his application, and as the record shows that the decision was sent on the same day to his last known address without being returned through undelivered mail, I do not see any good reason for his serious delay.

15.  As for the merits, if any, of his intended application, those grounds as stated above are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy was state acquiescence to his claim, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to give him sufficient time or opportunity to submit his relevant evidence for his claim or appeal, or that he fail to apply high standards of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 40 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

18.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, 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.”

The Appeal

8.  On 28 September 2020, the applicant filed his Notice of Appeal against the Judge’s decision in which he set out the following grounds of appeal:

(1)  The Director failed to appreciate or give the proper importance or weight to the presence of state acquiescence in his case and it led to an unfair outcome of rejecting his non-refoulement claim.

(2)  The Director, the Adjudicator and the Court failed to take his argument into account or the Director failed to give sufficient weight to his argument before reaching his decision.

(3)  The Adjudicator failed to make sufficient enquiry before making its decision and stated that the applicant had failed to give credible evidence to prove material elements of his claim.

(4)  It should be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that when he was in custody at the Immigration Detention Centre. The Adjudicator failed to give sufficient chance to him to arrange relevant evidence to prove his case.

(5)  To his surprise, the Director referred to relevant Country of origin information (“COI”) which suited his pre-conceived conclusion and it was a clear case of unfair attitude shown by the Director which in itself enough to render the decision void.

General Principles

9.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in 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.  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

10.  The applicant had failed to provide any proper ground of appeal to pinpoint any error of law or raise any discernible ground against the Judge’s decision and his appeal is doomed to fail.

11.  Further, the applicant’s complaints against the decisions of the Director and the Board were vague, general and without basis.  As had been said repeatedly, general assertions would not be enough to give rise to viable grounds of appeal in a matter of this nature: see Re Mizan Sikder [2019] HKCA 20; Re Imbuh Karina Binti Yamroni [2019] HKCA 950.  Upon our careful review of the Board’s decision, we found that the Board had duly considered and assessed the applicant case and reached the conclusion that his evidence was inconsistent and exaggerated for the purpose of applying for non-refoulement claim.  It is perfectly open for the Board to reach its findings and conclusions which in our view were well based and justified and there is no basis for intervention.

12.  The Judge had adopted the right approach and legal principles in refusing an extension of time for the application for leave to apply for judicial review and we agree with the Judge that the applicant’s delay was substantial and without valid and good reasons.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and we endorsed the Judge’s decision that applicant’s case is without merit and there is no prospect of success in his intended application for judicial review.

13.  For these reasons, we dismiss the appeal accordingly.