Kharoud Randhir Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 392 /2021

[2022] HKCA 449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 392 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2745 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.On 9 July 2021, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.On 29 July 2021, the applicant filed a summons for extension of time to appeal against that decision as the 14-day period to file his appeal ended on 23 July 2021.  The applicant’s summons was dismissed by the judge on 3 September 2021[2].

3.On 16 September 2021, the applicant filed the present summons with the Court of Appeal indicating that he would like to appeal.  We would treat this application as a renewed application for leave to appeal out of time against the decision of DHCJ Lung dated 9 July 2021 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

4.The applicant is a national of India.  He is 39 years old.  He was arrested by the police on 5 March 2016.  He claimed that he entered Hong Kong illegally that day.  He lodged a non-refoulement claim on 11 March 2016 on the basis that he will be harmed or killed by his paternal uncle because his uncle wants to occupy his land.

The Director’s decision

5.By a Notice of Decision dated 8 May 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

The Board’s decision

6.The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 11 September 2018.  The Board considered that the applicant fabricated his claims in an attempt to extend his stay in Hong Kong.  The Board found a number of incorrect claims and significant inconsistencies in the applicant’s evidence. Because of the lack of documentary evidence, the Board did not accept that the applicant had inherited the land from his father in 1992.  The Board also did not accept that the applicant’s uncle or his three sons had threatened, attacked and injured the applicant, or that the applicant had fears of being harmed by his uncle, his nephews or their friends.  Therefore, the Board concluded that the applicant is not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed the appeal on 12 November 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 3 December 2018 for leave to apply for judicial review against the decision of the Board[7].  He did not put forward any specific grounds for his intended challenge.

The judge’s decision

8.DHCJ Lung dealt with the application on paper as the applicant did not request for an oral hearing.  The judge held there is no error of law or procedural unfairness, or any failure to apply high standards of fairness in the decision of the Board.  As there is no prospect of success in the intended judicial review, the judge dismissed the leave application on 9 July 2021.

Grounds of intended appeal

9.The applicant stated the following grounds of appeal in his summons and affirmation:

(1)     The judge was wrong in accepting the Board’s finding.

(2)     The judge failed to consider all applicable grounds of the non-refoulement claim.

(3)     He will face hardship if he returns to his country because his life is in danger in his country.

10.His contentions in his written submissions may be summarised as follows:

(1)     High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

(2)     The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the credibility of the applicant.

Analysis and disposition

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 applicant took out a summons for extension of time at the court below on 29 July 2021.  He was late for 6 days. 

13.The applicant explained that he did not receive any letter from the court and he got the decision from the court on 29 July 2021.  The court sent the decision on 9 July 2021 by post to the applicant’s address which was stated in his Form 86 but the mail was subsequently returned to the court by the post office.  It was noted that the address stated in the summons for extension of time filed with the court below is different from the one stated in his Form 86 but the applicant did not file any notice of change of address for service.  Even if the court is minded to accept the applicant’s explanation in view of the short delay, the court would still assess whether the applicant can show reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

14.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

16.The applicant’s grounds and submissions are just bare assertions without particulars or evidence.  In particular, the adjudicator had given detailed analysis of the applicant’s credibility and well-founded explanation for rejecting the applicant’s evidence.  The applicant complained that the judge was wrong in accepting the Board’s findings but he failed to adduce evidence to refute the Board’s findings.  It has been well established that the primary decision makers in non-refoulement claims are the Director and the Board.  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.  The applicant failed to establish there are any errors of law or procedural unfairness or irrationality in the decision of the Board in the present case.

17.For the above reasons, there is no prospect of success in his intended appeal. We therefore refuse to exercise our discretion to grant leave to appeal out of time against the judge’s decision of 9 July 2021 and dismiss the summons filed on 16 September 2021.

The Applicant, acting in person

[1] [2021] HKCFI 1903

[2] [2021] HKCFI 2505

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

[4] 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.

[5] 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.

[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] Although the applicant only named the Immigration Department in the Form 86 and stated in his affirmation that he was not satisfied with the decision of the Immigration Department, he has attached the Board’s decision as an exhibit to his affirmation.  Thus, the judge should be entitled to treat the leave application for the intended judicial review as against the Board’s decision.

[8] Re Gurung Min Bahadur [2018] HKCA 226 at §10