Sidhu Harpreet Singh v. The Adjudicator of the Non-refoulement Claims Petition Office and Another

CAMP 82/2020

[2020] HKCA 872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 82 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1428 OF 2018)

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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 17 July 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim^[1].

2.The applicant issued a summons on 16 August 2019 seeking leave to appeal against that decision out of time, as the 14-day period to file his appeal ended on 31 July 2019.  His summons was heard by the judge on 16 October 2019.  On 19 June 2020, the judge refused to grant leave to the applicant to appeal out of time as the applicant failed to give any reason to support the contention he has any reasonable prospect in his intended appeal^[2].

3.On 3 July 2020, the applicant took out a 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 arrived in Hong Kong on 28 March 2013 and was arrested by the police on 13 August 2013 for overstaying.  He raised a non-refoulement claim on 17 April 2014 on the basis that he would be harmed or killed by his granduncles because of a land dispute if he was refouled to India.

The Director’s decision

5.By a Notice of Decision dated 18 October 2016, 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 23 February 2018.

7.The Board did not accept the applicant’s evidence as credible concerning the threats against his life by his cousins or that he came to Hong Kong to seek protection.  It was found that the applicant did not have a genuine fear of serious harm should he return to India.  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 6 July 2018.

The intended judicial review

8.The applicant filed a Form 86 and an affirmation on 19 July 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He put forward the following grounds for judicial review:

(1)  the Director’s decision and the Board’s decision are wrong as they are unreasonable and unfair;

(2)  the adjudicator failed to give him sufficient time to arrange relevant evidence to support his claim; and

(3)  the Immigration officer was not willing to listen to him.

The judge’s decision

9.The applicant appeared at the hearing before the judge on 18 January 2019.  The judge held that the applicant had not set out any exceptional circumstances which allow him to apply for judicial review against the Director’s decision.  Besides, the applicant had appealed against the Director’s decision to the Board.  Once an appeal to the Board is pursued, the Director’s decision is not susceptible to judicial review within this administrative structure^[7]. The judge also considered that the applicant’s grounds are not supported by evidence and are irrelevant to the reasons of the Board’s decision.  Therefore, on 17 July 2019, the judge refused to grant leave to the applicant.

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^[8]. 

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 was made on 17 July 2019.  The applicant took out a summons on 16 August 2019.  He was late for more than two weeks.  

13.The applicant explained that he had not received the decision within 14 days^[9]. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  The applicant’s explanation for his delay is not justifiable.

14.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.

15.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.

16.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.

17.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.

18.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^[10].

19.In any event, his grounds are just bare assertion without particulars and evidence in support.  The applicant had admitted before the judge at the hearing on 18 January 2019 that he had a fair hearing before the Board.  He also failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision of 17 July 2019.

20.For the above reasons, the applicant does not have any prospect of success in the intended appeal. We therefore dismiss the summons filed on 3 July 2020 for extension of time to appeal against the judge’s decision.

The Applicant, acting in person.

[1] [2019] HKCFI 1778

[2] [2020] HKCFI 1020

[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] Re Moshin Ali [2018] HKCA 549 at §45

[8] The ground concerning the Board’s failure to properly assess his credibility was not raised in the previous leave application.

[9] A copy of the Call-1 form, together with the cover letter from court dated 17 July 2019, had been exhibited to his affirmation filed on 16 August 2019.  This reflected that the decision was not lost in post.

[10] Re Qadir Sher [2018] HKCA 160 at §11