SUKHDEV SINGH v. TORTURE CLAIMS APPEAL BOARD

CAMP 354/2023, [2024] HKCA 476

On Appeal From [2023] HKCFI 1564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 354 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2438 OF 2020)

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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 14 June 2023[1] dismissing the applicant’s application for leave to apply for judicial review.   The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 23 November 2020.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 12 September 2018 rejecting his non-refoulement claim.

2.  On 16 November 2023, the Judge refused to extend time for the applicant to appeal against his decision of 14 June 2023.

Background

3.  The applicant is a national of India born in 1995.  On 15 July 2016, he attempted to enter Hong Kong from Mainland China on the strength of his Indian passport but was refused entry and returned to Mainland China on the same date.  The applicant later entered Hong Kong illegally, and surrendered to the Immigration Department on 20 July 2016.  He raised his intention to lodge a claim for non-refoulement protection on 26 July 2016 and submitted his formal non-refoulement claim form on 23 August 2018 on the basis that he would be harmed or killed by his paternal uncle and his two sons due to a land dispute, if he was refouled to India.

4.  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 12 September 2018, the Director rejected the claim.

5.  The applicant appealed to the Board against the Director’s decision.  The Board held an oral hearing of the appeal on 6 November 2020, at which the applicant gave evidence and answered questions from the Board.  In its decision dated 23 November 2020, the Board dismissed the appeal and affirmed the decision of the Director.  The Board’s reasoning was summarised by the Judge at [8] of the Form CALL-1:

“ 8. In its decision the Board despite some inconsistencies or discrepancies in the Applicant’s evidence did not take any serious issue with his claim of fear of harm from his uncle and sons arising from their dispute with his father over some land in his home village, but found that it was a private land dispute between them within the 2 families without any official involvement [and] that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home village without any risk of being located [and] that his claim for non-refoulement protection failed on all applicable grounds.”

The Judge’s decisions in the court below

6.  On 14 December 2020, 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.  In the supporting affirmation, the applicant merely stated that he was not satisfied with the Board’s decision and would like the court to proceed on his request.  On 28 February 2023, however, the applicant filed an affirmation for withdrawal of his application for judicial review, stating that he had no problem in his country and wanted to return as soon as possible.

7.  The Judge considered the application on the basis of the documents alone.  On 14 June 2023, the Judge issued his decision to dismiss the applicant’s application for leave to apply for judicial review.  The reasons were set out in [10] to [14] of the Form CALL-1 as follows:

“ 10. 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.

11. 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 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.

12. 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. Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as he no longer has any problem returning to his home country.

   14.    In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no further problem for him to return to his home country, I accordingly dismiss his leave application.”

8.  The applicant filed a summons on 20 September 2023 together with a supporting affirmation to apply for extension of time for filing an appeal.  In his affirmation, the applicant stated that he did not receive the decision of the Judge within 14 days and he should be given a reasonable opportunity to present his case, and annexed a copy of the sealed order and the decision of the Judge.  An oral hearing was held on 2 November 2023 and the applicant appeared in person to make oral submissions.  On 16 November 2023, the Judge issued his decision in writing refusing to extend time for appeal on the grounds that the applicant had failed to show any realistic prospect of success in his intended appeal and had failed to provide a good reason for his serious delay.

The renewed application before this Court

9.  By summons filed on 24 November 2023, the applicant made an application for leave out of time against the decision of the Judge dated 14 June 2023 refusing leave for judicial review. 

10.  In the applicant’s supporting affirmation, he stated that he did not receive the form CALL-1 as it was lost in the post, that he had already missed the 14-day deadline for appeal, and that he could not do anything to prevent the document from getting lost in the post.  He also submitted that he could only get the aforementioned documents after searching the court file.

11.  The applicant submitted written submissions on 6 December 2023.  It merely recites the general legal principles relating to the requisite high standards of fairness, Wednesbury unreasonableness, and late filing of notice of appeal under section 37ZT.  The applicant also submitted that the Board acted in a procedurally unfair manner as it did not properly assess his credibility.   However, the applicant did not provide any particulars to support any of these contentions.

12.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  The applicant was late for almost 3 months when he filed his initial summons for extension of time for appeal on 20 September 2023.  In his supporting affirmation, the applicant stated that he did not receive the CALL-1 within 14 days.  The court record does not show any record of undelivered post to the applicant and the applicant has not provided any relevant details or documentary evidence to corroborate his assertions for his substantial delay.  In these circumstances, the court will not extend time unless  there are real prospects of success in the intended appeal.

14.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing 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 the appeal were a fresh application for judicial review.

15.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal.  The Board had heard the applicant and assessed his evidence providing detailed reasons.  The Board rejected the applicant’s non-refoulement claim, because it considered that his claim was a private dispute that did not involve the state or any political party, and that police protection and internal relocation would be available to the applicant.  Hence, the Board did not find any real risk of harm to be faced by the applicant.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  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 or even identify any such public law grounds.

17.  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 dismissing his application for leave to apply for judicial review. 

18.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the same reason, we are satisfied that extension of time should be refused.  The applicant’s summons dated 24 November 2023 is accordingly dismissed.