SUKHVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 165 /2023, [2023] HKCA 1220

On appeal from [2022] HKCFI 3262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 165 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 119 OF 2019)

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J U D G M E N T

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

Background

1.  On 14 November 2022, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 12 December 2022, the applicant filed a summons for extension of time to appeal against the said decision at the Court of First Instance. The summons was dismissed by the judge on 17 April 2023[2].

3.  On 20 April 2023, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of India. He arrived in Hong Kong on 5 December 2014 and was permitted to remain in Hong Kong as a visitor until 19 December 2014. He did not depart and overstayed. He surrendered to the Immigration Department on 23 December 2014 and raised a non-refoulement claim on the basis that he would be harmed or killed by supporters of a political party called “Shiromani Akali Dal” (“SAD”) as he was a supporter of their rival party, the Indian National Congress (“INC”).

The decisions of the Director and the Board

5.  By a Notice of Decision dated 24 April 2018, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 9 November 2018, during which he gave evidence and answered questions. The Board did not accept that the applicant was involved heavily with the INC as it found his evidence in support of this assertion confusing. In addition, the Board had difficulties in accepting that despite the applicant having lived overseas for over a decade, he would still be targeted by the SAD notwithstanding he was not an active member of the INC. The Board therefore found there was no reliable evidence or reason for the SAD to cause him harm.

7.  The Board also did not accept the applicant was credible due to internally inconsistent evidence given at the hearing. He testified to the Board that the police arrested his father because he had filed a case against the SAD, and yet he changed his evidence later that the police were providing protection to his father. His alleged case filed against the SAD was only revealed for the first time at the hearing and he did not provide a valid explanation for his omission before, nor did he produce any credible evidence in support. The Board further considered that even if the applicant’s claims were accepted, internal relocation was a viable option based on credible country of origin information (“COI”), which also indicated that the SAD was not the ruling party in India and therefore further undermined the applicant’s claims.

8.  In light of its findings, the Board dismissed the appeal on 20 December 2018.

The intended judicial review

9.  On 14 January 2019, the applicant filed a Form 86 and an affirmation to seek leave to bring judicial review against the decisions of the Director and the Board. As summarised by the judge[7], the applicant put forward the following grounds for his intended challenge:

“(1) That the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2) That the Adjudicator failed to make sufficient enquiries before finalizing the determination of the Applicant’s claim by finding that he had failed to provide credible evidence to prove the material elements of his claim when the Applicant was the victim of a torture claim with limited options at his disposal to do so to the tribunal while he was also in the custody if (sic) the Immigration Department, and that the Adjudicator also failed to give him sufficient opportunity to arrange relevant evidence for his claim as well as his appeal;

(3) That the Director failed to take into account of the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as politicians as the direct result of misconduct of the police officials that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4) That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but which the Director failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case;

(5) That the Director in his decision had referred to COI with meaning that suited his preconceived conclusion which was a clear case of unfair attitude which in itself is enough to render the decision void; and

(6) That the Director failed to attain high standard of fairness required by the Wednesbury test in failing to recognize the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations have compiled reports on the matter which stated testament to the Applicant’s assertions.”

10.  The applicant requested a hearing in his Form 86 and the court scheduled a hearing on 19 July 2022 for the leave application. However, he was absent in court on the day. The judge therefore decided the matter on paper.

The judge’s decision

11.  The judge held that the applicant’s grounds at §9 above were all just broad and vague assertions without any explanation or elaboration as to how they are applicable to his case. These assertions were therefore not reasonably arguable for the intended challenge. The judge bore in mind that the evaluation of the risk of harm is primarily a matter for the Director and the Board, which they are entitled to make based on the evidence before them. The judge noted that the Court will not usurp the role of the Director and the Board as primary decision makers in the absence of legal error or procedural unfairness or irrationality in the Wednesbury sense.

12.  Having found no error of law or procedural unfairness in the decisions of the Director and the Board, or any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim, the judge was not satisfied there was any prospect of success in the intended challenge. He therefore dismissed the applicant’s leave application for judicial review on 14 November 2022.

Grounds of intended appeal

13.  The applicant did not provide any grounds of appeal in the present summons and merely stated that he wishes to challenge the decision of the judge. As for his supporting affirmation, he repeated that his life is in danger if he is refouled to India.

14.  The applicant’s written submissions mentioned four “riders”, which are as follows: (A) repetition of his background and claim; (B) definition of asylum; (C) complaints against the Board, in particular, the failure to make sufficient enquiries about his claim; and (D) request to the court to save his life as he does not wish to return to India. The applicant also cited section 37ZO of the Immigration Ordinance, Cap 115 regarding subsequent torture claims. However, there was no elaboration or explanation as to the relevance of such provision.

Analysis and disposition

15.  In considering whether to extend time to appeal against a decision refusing leave to apply for judicial review, the court will take into account: (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.

16.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 14 November 2022 and the applicant was late by 2 weeks when he took out the summons for extension of time to appeal at the court below on 12 December 2022.

17.  The applicant explained at the hearing before the judge on 30 March 2023 that he was not feeling well due to a fever at the material time. However, there were no further details provided nor any documentary evidence in support of his assertion[8]. In the circumstances, we do not accept the applicant’s explanation and find the delay to be unjustified.

18.  As the applicant’s delay is not excusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

19.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

20.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

21.  The applicant has not provided any valid grounds of appeal in his written submissions, which contained mostly bare assertions. The citation of section 37ZO of the Immigration Ordinance, Cap 115 is completely irrelevant as there was no mention of a subsequent torture claim in any of the documents filed. More importantly, the applicant failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

22.  For all the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 14 November 2022 and dismiss the summons filed on 20 April 2023.