JASWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

CAMP 239/2021

[2021] HKCA 1404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 239 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 947 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the judgment of the Court):

INTRODUCTION

1.  This is the applicant’s renewed application for an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 12 March 2021 refusing to grant leave to the applicant to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 16 May 2018.  By that decision, the Board dismissed the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 27 January 2016 and 5 June 2017 rejecting his non-refoulement claim.

3.  The applicant has not lodged any written submissions with the court in support of this application.

4.  Having considered the applicant’s summons and affirmation dated 2 July 2021, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

5.  The applicant is an Indian national.  He claims that if returned to India, he would be harmed or killed by a wealthy land owner (“R”) in his village over a dispute between the applicant’s family and R’s family relating to the installation of some electricity poles in 2000.  The details of his non-refoulement claim are set out in the Deputy Judge’s decision in the CALL-1 form at [1] to [4].[1]

DIRECTOR’S DECISIONS

6.  By a Notice of Decision dated 27 January 2016, the Director rejected the applicant’s non-refoulment claim in relation to torture risk[2], BOR 3 risk[3], and persecution risk[4] (the Director’s 1^st decision).

7.  In the Director’s 1^st decision, he took into account all relevant circumstances and assessed the level of risk upon the applicant’s return to India as low due to the low intensity and frequency of past ill-treatment from R and his men.  The Director considered that the dispute with R’s family was private in nature, there was no state involvement, and the applicant would be entitled to state or police protection.  Further, the Director found that there were reasonable internal relocation alternatives for the Applicant in India.[5]

8.  By a Notice of a Further Decision dated 5 June 2017, the Director rejected the applicant’s claim in relation to BOR 2 risk[6], as the applicant failed to submit any additional facts relevant to that ground despite being invited to do so by the Director (the Director’s 2^nd decision).[7]

BOARD’S DECISION

9.  The Board found the applicant’s story unreliable, and considered that significant time had passed since the dispute; therefore, it was unlikely for any hostilities to be carried out by R against the applicant in the future.  In any event, the applicant had reasonable internal relocation options within India.[8]

10.  The Board, therefore, refused the applicant’s appeal on 16 May 2018 and affirmed the Director’s 1^st and 2^nd decisions.

THE DEPUTY JUDGE’S DECISION

11.  On 28 May 2018, the applicant filed his Form 86 and supporting affirmation to apply to judicially review the Board’s decision.

12.  The Deputy Judge refused to grant leave to apply for judicial review on 12 March 2021,[9] and gave his reasons at [10] to [13] of the Form CALL-1 as follows:

“10. On 28 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached copies of the decision and all the documents in his appeal bundle without putting forward any ground for his intended challenge, nor was he able to do so at the hearing of his application other than just repeating his claim that he cannot go back to his home country as his problem is still there, As such 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 for his intended challenge.

11. 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.

12. In the Applicant’s case, 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 his 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.

13. 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.”

APPLICATION FOR EXTENSION OF TIME TO APPEAL

13.  On 30 March 2021, the applicant made an application for an extension of time to appeal against the Deputy Judge’s decision refusing to grant leave to apply for judicial review.[10]

14.  The application for extension of time was refused on 22 June 2021 by the Deputy Judge.  The Deputy Judge considered the delay to be minor but found that the intended appeal was without merit.  His reasons were as follows:[11]

“4. In the applicant’s case, a delay of 4 days may not be regarded as significant, for which he explained in his supporting affirmation that he only received the decision in the mail on 27 March 2021 when by then he was already out of time with his intended appeal. He however did not attend the scheduled hearing of his summons without any explanation.

5. The court record shows that the decision was sent on the same day to the applicant’s last reported address which is the same as stated in his present application without being returned through undelivered post, and in the absence of any further details or documentary evidence such as the envelope which contained the decision showing the actual postmark to corroborate his bare assertions, I am not satisfied that he has provided any good reason for his delay, but given his relatively insignificant procedural breach, I propose to focus on the prospect of his intended appeal.

6.  However, the applicant did not put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, and as noted above he also failed to attend the hearing of his summons. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.”

15.  By summons dated 2 July 2021, the applicant renewed his application for an extension of time to appeal before this Court.

16.  In his summons and affirmation, the applicant has not put forward any proper grounds of appeal.  He states that the Deputy Judge was wrong to accept the Board’s finding and the Board failed to consider all applicable grounds of his non-refoulement claim, and repeats that his life will be in danger in his home country.

LEGAL PRINCIPLES

17.  When considering whether to extend the time for appealing against a decision refusing to grant leave to apply for judicial review, the court will have regard to (1) the length of the 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.  Even if an applicant’s explanation for the delay is not accepted, the court would still examine if the intended appeal has merit.

18.  The general principles regarding an appeal in a non-refoulement judicial review case were most recently summarised in Re Mohammed Asgar [2021] HKCA 1239 at [17]-[18].  In short:

(1)  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 in the process by which the decision was made.

(2)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge considering the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  This court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review.

DISCUSSION

19.  We accept that the Applicant’s delay is minor.  Hence, this Court will consider the merits of the intended appeal.

20.  The applicant has not shown any errors or viable grounds of appeal in his summons or affirmation.  There is, therefore, no prospect of success in the applicant’s intended appeal.

DISPOSITION

21.  The application for extension of time to appeal is refused, and the applicant’s summons of 2 July 2021 is dismissed.

[1] [2021] HKCFI 668 (Form CALL-1).

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[5] [2021] HKCFI 668 at [6].

[6] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] Ibid at [7].

[8] Ibid at [14].

[9] Ibid.

[10] [2021] HKCFI 1639 at [2].

[11] Ibid.