RE GURNINDER SINGH

CACV 245/2023, [2023] HKCA 1291

On appeal from [2023] HKCFI 1924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 245 OF 2023

(ON APPEAL FROM HCAL NO. 3404 OF 2019)

________________________

________________________

_________________

J U D G M E N T

_________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 26 July 2023[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 7 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”) dated 6 October 2017 rejecting his non-refoulement claim.

2.  On 3 August 2023, the applicant consented to this appeal being disposed of on paper without an oral hearing. Despite directions given by the Registrar of Civil Appeals, the applicant has not put in any written submission to support his appeal.

Background

3.  The applicant is a national of India aged 42. He entered Hong Kong illegally and surrendered to the Immigration Department on 15 April 2015. He later raised a non-refoulement claim based on fear of being harmed or killed by his brother (“Gurdev”) over disputes about some family land. Pending the determination of his claim, the applicant was convicted and sentenced to 15 months’ imprisonment for unlawfully taking up employment whilst remaining in Hong Kong. The details of the applicant’s claim are set out at [5] and [6] of the Director’s Decision and summarised by the Judge at [1] to [6] of the Form CALL-1.   

4.  In gist, the applicant claimed that his father intended to transfer to him some land that he had inherited or purchased (collectively the “Land”), instead of Gurdev, who is a gangster associated with the Indian Congress Party. Angered by the father’s decision, Gurdev and his men had sabotaged the father’s attempts to transfer the Land to the applicant and had threatened to kill the applicant. On one occasion, they attacked the applicant causing him dental and leg injuries. Fearing for his personal safety, the applicant left India for Guangzhou in March 2015 from where he sneaked into Hong Kong. To avoid Gurdev, his wife and daughter have moved to live with his in-laws in another village. The applicant also claimed that his father has leased out the Land for farming but Gurdev is still pursuing the Land. 

The Director’s decision

5.  By a Notice of Decision dated 6 October 2017, the Director rejected the applicant’s claim on all applicable grounds, namely, BOR 2 risk^[2], BOR 3 risk^[3], persecution risk^[4] and torture risk^[5] grounds.    

The Board’s decision

6.  The applicant appealed to the Board.  The Board heard the appeal at a hearing held on 3 May 2018 during which he was assisted by an interpreter.  By its decision dated 7 May 2018, the Board dismissed the appeal.

7.  In gist, the Board considered the applicant’s evidence to be vague, implausible and inconsistent which undermined the credibility of his claim. In particular, the applicant gave inconsistent evidence of the basic facts of his claim, such as the size of the Land owned by the father and the current situation of the Land. Contrary to what was documented in the evidence, he stated at the hearing before the Board that his brother had already taken possession of the Land[6]. He also gave different account as to the circumstances in which Gurdev and his men had carried out threats and attacks in their attempt to sabotage the transfer[7]. The Board was not satisfied that the multiple and material inconsistencies in the applicant’s evidence were due to the tension suffered by him while he was in prison at the time the NCF was prepared[8]. Having considered his claims individually and cumulatively as well as his personal circumstances, the Board rejected all aspects of the applicant’s claim and concluded that he failed to establish entitlement to non-refoulement protection under any of the applicable grounds and dismissed his appeal.

The Judge’s decision

8.  On 18 November 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. Order 53 rule 4(1) of the Rules of the High Court requires an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose. The applicant’s application was late by 15 months. He did not set out any ground for seeking relief in either the Form 86 or the supporting affirmation.

9.  The Judge heard the application at an oral hearing, during which the applicant did not proffer any ground in support of his application.  By a Form CALL-1 dated 26 July 2023, the Judge refused to extend time for the judicial review application and dismissed the application for leave to apply for judicial review. The Judge gave his reasons in [15] to [21] as follows:

“15. In the Applicant’s case, a delay of 15 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or 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 reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

16. As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality 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 merits in his intended application either.

17. 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.

18. 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 – 38 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.

19. The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.

20. 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.

21. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

The grounds of appeal

10.  The applicant filed a Notice of Appeal on 3 August 2023 to appeal the Judge’s decision. In the Notice of Appeal, the applicant stated that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his home country. The Notice of Appeal also enclosed a three-page written grounds of appeal, which reproduced [1] to [6] of the Form CALL-1 and stated that the applicant did not agree with the decisions of the Director and the Board.   

Our reasons for decision

11.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board, who are responsible for assessing the credibility of witnesses, the evidence and country of origin conditions, and make findings of fact pertaining to whether there are risks of harm, availability of state protection and viability of internal relocation.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was 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 and/or the process by which the decision was made.

(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.

12.  In light of the established legal principles set out above, we are of the view that the applicant’s appeal has no merits. Our reasons are as follows.

(1)  The applicant’s complaint that he was not given an opportunity to clarify his case and the situation in his home country is misplaced. The Judge listed the case for an oral hearing.  The applicant had attended the hearing during which he was afforded an opportunity to present his case to the Judge with the assistance of an interpreter. The Judge had found that at the hearing, the applicant did not put forward any ground for his intended challenge and had not provided any explanation for the substantial delay in bringing the application. In the circumstances and for the reasons given in the Form CALL-1, the Judge is entitled to refuse to extend time for the judicial review application and dismiss the leave application. There is no basis for this Court to interfere with his decision.

(2)  After careful and thorough analysis, the Board rejected the applicant’s claim having regard to the inconsistency of his evidence and the implausibility of his case. These are findings within the province of the Board as the primary decision-maker. The court cannot intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. The applicant has not identified any basis for intervention by the court.  

(3)  We have separately reviewed the Board’s decision. Like the Judge, we see no proper basis for interfering with the Board’s evaluation of the evidence and assessment of credibility and finding of facts.    

13.  We agree with the Judge’s conclusion that the intended judicial review has no prospect of success, and that time should not be extended for the intended judicial review. As the appeal has no merits, we dismiss the appeal.