RE LAKHVIR SINGH

CACV 584/2020

[2021] HKCA 1079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 584 OF 2020

(ON APPEAL FROM HCAL NO. 230 of 2018)

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JUDGMENT

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Hon Chu JA 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 17 June 2020[1] refusing to extend time for him to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 3 March 2017 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 11 September 2015 rejecting his non-refoulement claim and the Director’s further decision dated 29 June 2017 on assessment of the BOR 2 risk ground.

2.  The applicant has consented to the appeal being heard by two judges of the Court of Appeal.

3.  The applicant is an Indian national aged 33.  He entered Hong Kong on 12 May 2010 and was given permission to remain as a visitor for two weeks.  He overstayed and was arrested by the police on 28 April 2011.  He later raised a non-refoulement claim based on fear of being harmed or killed by his uncle over a land dispute.  His claim was set out in detail in the Director’s decision at [6] and the Board’s decision at [25] to [45], and summarised by the Judge in [1] to [5] of the Form CALL-1. 

4.  In gist, the applicant claims that his uncle was angry at him because his deceased grandfather had left one of his farmlands to him.  His uncle had been the village head representing the Shiromani Akali Dal, which was the ruling party in Punjab.  In 2009, he made a false charge of theft against him to the police.  The applicant left his home to stay with a relative. In early 2000, his uncle and three men attacked the applicant at the relative’s place and broke his arm.  Fearing for his safety, the applicant departed for Hong Kong where he overstayed.     

5.  By his decision dated 11 September 2015, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3] and BOR 3risk^[4] grounds.   

6.  The applicant appealed the Director’s decision to the Board.  The Board heard his appeal at an oral hearing held on 10 May 2016 during which the applicant gave evidence and answered questions from the Board. By its decision dated 3 March 2017, the Board dismissed the appeal.  In summary, the Board accepted the applicant had a land dispute with his uncle, but found that he had not suffered any ill treatment or prescribed form of harm that would entitle him to non-refoulement protection.  The Board further considered that the risk of harm would be lowered or negated by the availability of state protection and internal relocation alternatives.  The Board concluded that he failed to make out a case for non-refoulement protection.

7.  By a further decision dated 29 June 2017, the Director assessed the applicant’s claim on the BOR 2 risk^[5] ground and decided against it. 

8.  On 13 February 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision and the further decision of the Director.  He did not give any ground for seeking relief in the Form 86.  In his supporting affirmation, he merely stated that his life would be in danger in his home country and asked to be allowed to remain in Hong Kong.

9.  The applicant did not request an oral hearing. The Judge dealt with the application on the paper.  For reasons set out in [12] to [18] of the Form CALL-1, the Judge refused to extend the time for applying judicial review and dismissed the application:

“12. The Applicant was by then also seriously late with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that 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 unless the court considers that there is good reason for extending the period within which the application shall be made.

13. As the last day of the three-month period for the Applicant to file his Form 86 fell on 3 June 2017, he was therefore more than eight months late with his intended challenge of the Board’s decision, and that he would still be more than four months late for the unlikely challenge of the further decision of the Director as his claim clearly did not engage BOR 2 risk at all; and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason of the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 2; and AW v Director of Immigration [2016] 2 HKC 393.

14. In the Applicant’s case, a delay of more than eight months must be considered as very substantial or excessive, for which he did not provide any explanation, nor did he request for any oral hearing for his application. As such I do not accept that he has provided any good reason for his serious delay.

15. As for the merit of his intended application, as noted he did not provide any ground for his intended challenge but merely repeated his claim. 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 an 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 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.

16. 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 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. 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.

18.  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 his application is dismissed.”

10.  By his decision dated 28 October 2020[6], the Judge extended the time for the applicant to appeal his decision of 17 June 2020.

11.  The applicant filed the notice of appeal on 2 November 2020, in which he contended that the Judge erred in refusing to extend time for applying for judicial review for the following reasons:

(1)  The Board decided that he was not a credible witness.  However, he had complained to the authorities about the lack of clarity and transparency of the hearing bundle.  The Judge dismissed his claims finding that he was only confused about the procedure and that the interpreter had gone through the bundle with him.  This is an overstatement because the interpreter only interpreted those parts of the bundle that the Board referred him to, and he did not know about the rest of the bundle.  It was not a fair hearing because the bundle was not read to him before he hearing, Duty Lawyer service had refused to give him assistance and he can barely read English.

(2)  He had no means of finding out whether the interpreter had correctly interpreted his words.  A lot of the words were lost in translation.  The Board was wrong in deciding that he lacked credibility.

(3)  The Director should consider his case afresh and if necessary, re-assess his claim under the BOR 2 risk ground, similar to the case of HCAL 36/2016.     

12.  In his written submission, the applicant stated that the outcome of his legal aid application is pending.  He went on to describe the factual and procedural background of his case, his application for leave to apply for judicial review and put forward arguments to support this appeal. 

13.  We heard the appeal on 20 July 2021.  At the hearing, the applicant confirmed that he in fact did not apply for legal aid in connection with this appeal.  He had nothing to add to what was already stated in his notice of appeal and written submission.

14.  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].

15.  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

16.  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.

17.  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.

18.  In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal. 

19.  Firstly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to specific to errors in the reasons and decision of the judge.  In the present case, the applicant was more than eight months late when he filed the Form 86 to challenge the Board’s decision and more than four months late for the challenge to the Director’s further decision.  The Judge refused to extend the time for him to bring judicial review having regard to his serious and unexplained delay and the lack of arguable ground for the intended judicial review.  None of the grounds or arguments put forward by the applicant in this appeal has addressed the Judge’s decision not to extend time.

20.  Secondly, the grounds contained in the notice of appeal and the matters stated in the written submission had not been argued before the Judge.  It is not permissible for an appellant to advance new grounds that had not been argued in the court below.  In this regard, [13] of the written submission is wrong in saying that the applicant had submitted eight grounds in his Form 86 dated 13 February 2018.  As mentioned above, neither the Form 86 nor the supporting affirmation had provided any ground for seeking relief. 

21.  Thirdly, the new matters now raised by the applicant are misplaced.  Contrary to what was argued by the applicant, the Board did not make a finding that he was not a credible witness.  The Board had in fact accepted his case that he had a land dispute with his uncle.  What the Board found was that the risk of harm is a localised one, and the evidence did not support a case of ill-treatment or harm that fall within the applicable grounds for non-refoulement protection.  The Board also considered it was neither unreasonable nor unsafe for him to relocate.  Evaluation of risk of harm and assessment of country-of-origin information are matters for the primary decision makers and not for the court.  The applicant has not advanced any substantive ground to challenge these findings of the Board.  His bare assertions that he will be in danger if he returns to his home country are not proper grounds for judicial review.      

22.  In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We agree with the Judge that there is no basis for extending the time to apply for judicial review.  Accordingly, we dismiss the appeal.