SINGH GURVINDER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 213/2021, [2023] HKCA 912

On Appeal From [2021] HKCFI 81

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 213 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 876 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 11 January 2021 refusing to grant leave to apply for judicial review. [1] The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 10 May 2018. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 28 June 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of India born in 1986. He arrived in Hong Kong on 10 December 2015 and was permitted to remain as a visitor. He has however overstayed since 25 December 2015 and on 29 December 2015, he surrendered to the Immigration Department and raised a non-refoulement claim on 7 September 2016 on the basis that he would be harmed or killed by members of the Indian National Congress (“INC”) as he was involved with a rival political party, the Bharatiya Janata Party (“BJP”). In particular, the applicant claimed he was targeted by the INC because he had helped the BJP in the Legislative Assembly elections. The details of his claim are set out in [11] – [54] of the Director’s decision dated 28 June 2017.

3.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] By a notice of decision dated 28 June 2017, the Director rejected the claim.

4.  The applicant appealed to the Board against the Director’s decision, and an oral hearing was held accordingly on 30 April 2018. The applicant, however, chose to remain silent and insisted his case was in the information previously provided to the Director. Due to the applicant’s refusal to give evidence, numerous queries intended to be clarified with him as set out by the Board at [26] of its decision were left unanswered. Thus, the Board did not attach any weight to the applicant’s information/evidence and found he had failed to establish the factual basis of his claim. The Board went further to say that on the basis if the applicant’s claim was true, it still would not have found a real risk of serious personal harm justifying non-refoulement protection as the alleged attacks by the INC meant they had ample opportunity to harm or even kill the applicant and yet they chose not to do so. In light of its findings, in its written decision issued on 10 May 2018 the Board dismissed the appeal and confirmed the decision of the Director.

The Judge’s decisions in the court below

5.  On 21 May 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form. The supporting affirmation filed together with the Form 86 merely stated the Director had disregarded the applicant’s dangerous situation but no particular or elaboration was provided.

6.  As the applicant did not request an oral hearing, the Judge dealt with the application on the papers. By his decision on 11 January 2021, the Judge refused to grant leave to apply for judicial review. The reasons were set out at [9] to [13] of the Form CALL-1 as follows:

“ 9. 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.

10. 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 25 – 28 of its decision when the Applicant for no reasonable cause declined to answer or clarify those many questions raised of his claim during his appeal hearing, in particularly when the Director also in his decision raised the same issue over his credibility and of which the Applicant must have been well aware when he was then still legally represented by DLS and that such issues must have been explained and advised to him before he lodged his appeal to the Board. In the circumstances 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.

11. 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.

12. 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.

13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

7.  The applicant did not appeal within the period of 14 days prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A). Instead he filed a summons in the Court of First Instance on 25 February 2021 seeking an extension of time to appeal. The application was heard by the Judge on 25 May 2021, and dismissed in his decision of 4 June 2021[6] on the ground that the applicant had failed to show any prospect of success in his intended appeal.

The renewed application before this Court

8.  By the present summons filed on 10 June 2021, the applicant made another application to this court for extension of time for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In the summons, the applicant did not provide any grounds of his intended appeal. In the accompanying affirmation, the applicant stated he was ignorant of court procedure and lacked financial resources.

9.  The applicant’s written submissions contend, in essence, that he was never provided with proper legal and language assistance, which was discriminatory and procedurally unfair.

10.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

11.  The applicant’s delay of one month in this case is substantial. He did not provide any explanation for it. In the circumstances, an extension should not be granted unless there are real prospects of success in the intended appeal. Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.

12.  In the first instance, the applicant’s contentions in his affirmation are not viable grounds of appeal. They are simply bare assertions without any evidence in support.

13.  As for his written submissions, the applicant has raised new issues for the first time. For that reason alone, they are not proper grounds of appeal. The Court of Appeal will generally not entertain new grounds as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below: see Re Qadir Sher [2018] HKCA 160 at [11].

14.  In any event, the applicant was legally represented by the Duty Lawyer Service and provided with language assistance on his claim before the Director. At the Board hearing, an interpreter was provided. As the Court of Appeal has repeatedly stated, an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings: see Re Paswan Shibu Lal [2018] HKCA 249 at [21]. Nor is there an entitlement to interpretation service being made available to an applicant at every stage he may desire under the high standard of fairness required by law: see Re Gurung Sagar [2019] HKCA 658 at [12].

15.  We are also aware that the applicant exercised his right to remain silent at the Board’s hearing and refused to answer questions. In light of the decisions in Re Masud MD[7] and the subsequent case of Buniag Renante Lulu v Torture Claims Appeal Board and Director of Immigration[8] relating to the high standard of fairness required of the Board in circumstances when the applicant refuses to answer questions at a hearing, we reiterate there is no absolute rule requiring the Board to give a warning to the applicant that his case is bound to fail unless he continues to participate in the hearing. Both parties are under a duty to make a joint endeavour, as repeatedly stated by the Court of Appeal in Re Masud MD (supra) and Buniag Renante Lulu (supra). What this requires depends on the facts of the case. The high standard of fairness does not mean that the Board must in every case expressly caution the applicant that his claim will fail if he chooses not to cooperate.

16.  In the present case, the Board as set out at [5] of its decision was clearly aware of the spirit of joint endeavour required from both parties. It was the applicant who on his own volition chose to remain silent. In other words, the applicant chose not to perform his part of the joint endeavour. The Court of Appeal also held in ST v Betty Kwan [2014] 4 HKLRD 277 at [39], that the Board has no duty to keep probing and inquiring where the objective circumstances make it reasonably clear that the applicant, such as in the present case, is aware of what he has to demonstrate to the Board and has already produced or mentioned all that he wants to show to the Board.

17.  The Board was also alive to the possibility as set out at [6] of its decision that even where the applicant’s evidence is accepted, his claim may still be dismissed due to other reasons, such as the Board finding that the risk of harm does not reach the requisite level of severity or is not real due to changes of the situation in the home country. As for the applicant, he must have been well aware of the issues of credibility arising in relation to his claim as rightly stated by the Judge at [10] of his decision. In particular, the applicant’s legal representatives from the Duty Lawyer Services during the screening by the Director must have advised him in broad terms of the requirement to engage with the authorities in the processing of his claim.

18.  In light of the above, the Board’s conclusion on the basis of its factual findings that the applicant was not subjected to any risk of serious personal harm if he is returned to his country cannot be faulted. This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it gave in its decision. In the circumstances, we are of the view that the Board has met the high standard of fairness applicable. In fact, the Board went further and considered that even if the applicant’s claims were accepted, it would still dismiss the appeal as the applicant’s evidence did not show any risk of serious physical harm that would justify non-refoulement protection.

19.  It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The applicant has failed to establish any such public law grounds.

20.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The applicant has failed to advance any grounds to show how the Judge is said to have erred in refusing to extend time and to grant leave for judicial review. Having considered the materials available, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review.

21.  We do not see any prospect of success in the intended appeal. The applicant’s summons is accordingly dismissed.