Chetry Gokul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of CAMP 77/2020 on BabelCite. This Court of Appeal judgment was delivered on 30 October 2020.
1. On 9 August 2018, Deputy High Court Judge Woodcock (“DHCJ Woodcock”) refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim [1] .
Cited by 1 case · Cites 5 cases
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CAMP 77 /2020 [2020] HKCA 873 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO 77 OF 2020 (ON AN INTENDED APPEAL FROM HCAL NO 732 OF 2017) ________________________ |
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| Chetry Gokul | Applicant | |
| and | ||
| Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office | Putative Respondent | |
| and | ||
| Director of Immigration | Putative Interested Party |
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| Before: | Hon Kwan VP and Chu JA in Court |
| Date of Written Submission: | 25 August 2020 |
| Date of Judgment: | 30 October 2020 |
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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):
1.On 9 August 2018, Deputy High Court Judge Woodcock (“DHCJ Woodcock”) refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].
2.The applicant issued a summons on 4 December 2019 seeking leave to appeal against that decision out of time, as the 14-day period to file his appeal ended on 14 September 2018 (after discounting the month for August 2018 on account of the Court’s summer vacation). He also sought leave to advance a new ground of appeal. His summons was heard by Deputy High Court Judge K W Lung (“DHCJ Lung”) on 23 January 2020. On 26 June 2020, DHCJ Lung refused to grant leave to the applicant to appeal out of time as the applicant failed to show he had any reasonable prospect of success in his intended appeal[2].
3.On 2 July 2020, the applicant took out this renewed application in the Court of Appeal for leave to appeal out of time.
4.The applicant is a national of India. He is 30 years old. He claimed to have entered Hong Kong illegally on 7 November 2015 and was arrested by the police on the same day. He raised a non-refoulement claim on 9 November 2015. His claim was made on the basis that he would be harmed or killed by members of a terrorist group called the United Liberation Front of Assam (“ULFA”) if he were to return to India because he had refused to join them.
The Director’s decision
5.By a Notice of Decision dated 29 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including BOR 2 risk[3], BOR 3 risk[4], torture risk[5] and persecution risk[6].
The Board’s decision
6.The applicant appealed against the Director’s decision to the Board. The Board conducted a hearing on 28 August 2017.
7.The Board found there is no merit in the applicant’s claim as he had never been inflicted with any injuries or threat by the ULFA members. The Board further considered that state protection would be available to the applicant in India and internal relocation is a viable option. Therefore, the Board dismissed the applicant’s appeal on 1 September 2017.
The intended judicial review
8.The applicant filed a Form 86 and an affirmation on 6 October 2017 to seek leave to apply for judicial review against the decision of the Board. His grounds for judicial review may be summarized as follows:
(1) the Board failed to maintain high standard of fairness in failing to ensure that the hearing bundle and skeleton argument of the Director were served on the applicant within a reasonable time and in failing to arrange an interpreter to interpret the hearing bundle and skeleton submission to the applicant;
(2) the Board erred in approaching the matter by simply trying to see whether he could find fault with the decision of the Immigration Officer;
(3) the Board failed to consider the conditions of the applicant’s country of origin; and
(4) the Board failed to take into consideration that the applicant was not legally represented after the Director’s decision and has insufficient legal knowledge.
The decision of DHCJ Woodcock
9.The judge held that the applicant failed to show any error of law, procedural unfairness or failure to adhere to high standard of fairness by the adjudicator. Therefore, on 9 August 2018, the judge refused to grant leave to the applicant to apply for judicial review.
Grounds of the intended appeal
10.In the applicant’s written submissions, he stressed that high standards of fairness are required in the determination of a torture claim and submitted that the adjudicator had acted in a procedurally unfair manner without properly assessing his credibility[7].
Analysis
11.In considering whether to extend time for appealing 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.
12.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 of DHCJ Woodcock was made on 9 August 2018. The applicant took out a summons on 4 December 2019 and was late for nearly fifteen months. The delay is very substantial.
13.Before DHCJ Lung, the applicant explained that he had not receive the decision of DHCJ Woodcock on time but he confirmed he had received the decision[8]. His explanation cannot justify such a lengthy delay. In these circumstances, he must show a real prospect of success on the merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.
14.In assessing the merit 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.
15.The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Assessment of evidence and Country of Origin Information 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.
16.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 judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.
17.The applicant’s ground concerning the Board’s failure to properly assess his credibility was not raised in his previous leave application. The Court of Appeal would not entertain such new ground as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[9].
18.In any event, his grounds are just bare assertion without particulars and evidence in support. In his submission before DHCJ Lung, he acknowledged that he did not know anything wrong in the decision[10]. The applicant failed to demonstrate that DHCJ Woodcock had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
19.For the above reasons, the applicant does not have any prospect of success in the intended appeal against the decision of DHCJ Woodcock. We therefore dismiss the summons filed on 2 July 2020 for extension of time to appeal against that decision.
| (Susan Kwan) | (Carlye Chu) |
| Vice President | Justice of Appeal |
The Applicant, acting in person.
[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[6] 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 and its 1967 Protocol.
[7] The ground concerning the Board’s failure to properly assess his credibility was not raised in the previous leave application.
[8] See record of the hearing on 23.1.2020.
[9] Re Qadir Sher [2018] HKCA 160 at §11
[10] Record of the hearing on 23.1.2020 & [2020] HKCFI 1261 at §9
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