RE SINGH MANMEET

CACV 307/2022

[2023] HKCA 376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 307 OF 2022

(ON APPEAL FROM HCAL 705/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 28 July 2022 refusing to extend time for the applicant to apply for leave for judicial review and dismissing his leave application. The intended judicial review was against (1) the decision of the Torture Claims Appeal Board/adjudicator of the Non‑Refoulement Claims Petition Office (“the Board”) dated 9 April 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 4 November 2015 and 5 December 2016 (“the Director’s Decisions”) rejecting the applicant’s non-refoulement claim; and (2) the Director’s Decisions themselves.

Background

2.  The applicant is a national of India. He entered Hong Kong on 12 August 2010 as a visitor, but he overstayed and was arrested by the police on 5 October 2010. Thereafter, he lodged a torture claim on 13 November 2010, which was later treated as a non-refoulement claim upon implementation of the unified screening mechanism.

3.  The applicant’s claim was based on a fear of being harmed or killed by his father’s business partners. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision and a Notice of Further Decision respectively dated 4 November 2015 and 5 December 2016 (i.e. the Director’s Decisions), the Director decided against the applicant’s claim. The Director’s Decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board. After oral hearings on 31 May 2017 and 1 December 2017, the Board dismissed the appeal by the Board’s Decision, which covered all four grounds for non-refoulement protection. The Board found that the inconsistencies and discrepancies in the applicant’s evidence rendered his evidence incredible. In any event, the Board was of the view that the risks of harm if any would be mitigated by the applicant’s internal relocation in India.

The Judge’s decision

6.  The applicant filed a Form 86 out of time on 13 March 2019, purportedly seeking to judicially review the Board’s and the Director’s Decisions. Pursuant to the principles set out in Re Moshsin Ali [2018] HKCA 549, the Judge proceeded on the basis that the intended judicial review was against the Board’s Decision only.

7.  In the applicant’s supporting affirmation, he simply exhibited a copy of the hearing bundle for the hearing before the Board.

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant’s application nor grant him leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [21] of the CALL-1 Form:

“14. As mentioned in paragraph 1, the applicant’s application is late for about 5 months. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13(1)…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.’

18. The applicant has not raised any valid ground to challenge the Board’s Decision.

19. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

21. I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 8 August 2022, the applicant set out his grounds of appeal, which are in gist:

(1)  the Director, the Board and the Judge failed to take “such argument” (without specifying what this “argument” was) into account and failed to give sufficient weight to it;

(2)  the Director failed to accord due weight to the presence of state acquiescence, and unfairly referred to Country of Origin Information that only tended to support the decision to reject the claim in reaching his Decision;

(3)  the Board failed to make “sufficient [enquiries]” (without specifying what these enquiries might have been) before reaching its Decision, and did not give the applicant “sufficient chance to arrange relevant evidence”.

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court. We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

11.  The applicant lodged written submissions on 22 August 2022, in which he referred to the well-established principles in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

12.  On 28 December 2022, the applicant lodged a further letter in Punjabi with an accompanying English translation, in which he claimed that his father was beaten up by “the people he had money matters” and that after being hospitalised, he eventually passed away “due to depression”. He also submitted that his mother, as a result of his father’s encounters, warned him not to return to India as his life would be in danger. The applicant exhibited various medical documents with these submissions (most of which are in his native language) no doubt with a view to establishing that his father was hospitalised and had passed away. Notwithstanding that these further submissions were lodged without leave of the court, we have taken them into account in our determination of this appeal.

Discussion

13.  The applicant has in his Notice of Appeal failed to particularise the alleged error on the part of the Judge (simply stating that the Judge had failed to give sufficient weight to an unspecified argument) and thus has failed to raise any viable ground of appeal. As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening. The applicant has wholly failed to do so.

14.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

15.  As to the applicant’s present complaint that the Board failed to make “sufficient [enquiries]”, he has failed to particularise his allegation. We note that the applicant appeared before the Board at an oral hearing, the initial hearing of which was adjourned by the adjudicator so that the relevant hearing documents could be translated for the applicant’s benefit. There is nothing to suggest that the applicant was unable, by reason of the apparent lack of opportunity or otherwise, to fully and properly present his case to the Board.

16.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. The Judge considered the decisions of both the Director and the Board and found no basis for intervening. In our view, he was clearly correct to do so.

17.  There was also no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the processing of his non-refoulement claim.

18.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

19.  As to the additional documents provided under cover of the applicant’s letter, at best these might tend to establish that his father was hospitalised and passed away, but they do not appear to provide any further support for the claim that his life would be at risk from the alleged business partners of his father. They therefore do not assist the applicant.

20.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.