Re Gurpreet Singh

CACV 398/2022

[2023] HKCA 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 398 OF 2022

(ON APPEAL FROM HCAL 2262/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 20 September 2022 refusing to extend time for the applicant to apply for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 5 May 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 26 January 2016 and 16 November 2016 (“the Director’s Decisions” / respectively “the Director’s 1^st and 2^nd Decisions”) rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India. He entered Hong Kong as a visitor on 25 December 2013.  He overstayed and was arrested by the police on 15 March 2014.  Thereafter, he raised a non-refoulement claim on 17 March 2014.

3.The applicant’s claim was based on a fear of being harmed or killed by his uncle due to a family dispute.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.By a Notice of Decision and a Notice of Further Decision respectively dated 26 January 2016 and 16 November 2016 (i.e. the Director’s Decisions), the Director decided against the applicant’s claim.  The Director’s Decisions covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.The applicant appealed against the Director’s Decisions to the Board, for which an oral hearing was held on 2 December 2016. Because of the discrepancies in the applicant’s evidence, the Board found that his alleged risk of harm was not real.  The applicant’s appeal was dismissed by the Board’s decision dated 5 May 2017 (i.e. the Board’s Decision), which covered all applicable grounds for a non-refoulement claim.

The Judge’s decision

6.The applicant filed a Form 86 out of time on 18 October 2018 seeking to judicially review the Board’s Decision but did not set out any grounds for review.

7.In his supporting affirmation filed on the same date, the applicant deposed:

“Due to respect, I want let you know my life is still dangerous, I cannot go back to my home country with any condition so please review my case. I shall be thankful to you.”

8.After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to extend time for the applicant to apply for leave to apply for judicial review.  The Judge gave the following reasons in refusing to extend time at [16] and [23] of the CALL-1 Form: 

“16. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merits of the applicant’s case.

17. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13 (1) …Assessment of evidence and COI 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.’

20. The applicant’s reason raised in paragraph 15 above is not a valid ground to challenge the Board’s Decision.

21. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

23. I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review.  Accordingly, I dismiss his application.”

Grounds for appeal

9.In the Notice of Appeal filed on 3 October 2022, the applicant set out his grounds of appeal, namely that (1) the Director failed to “consider” his claim; and (2) the Director failed to consider alleged “significant change” which took place between his 1^st and 2^nd Decisions. 

10.In breach of the directions made by the Registrar of Civil Appeals on 16 November 2022, the applicant failed to lodge skeleton submissions with the court 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

11.The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

12.The hearing date on 1 February 2023 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

13.The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

14.In the application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully, or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

15.As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

16.As to the applicant’s grounds of appeal, which are complaints solely against the Director, it is established principle that a decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by a non-refoulement claimant.  See Re Moshsin Ali [2018] HKCA 549.  In any event, there is nothing to suggest that the applicant had submitted the alleged “significant change” to the Director for consideration after the Director’s 1^st Decision (in fact, he did not respond to the Director’s written request to him to submit additional information before the Director reached his 2^nd Decision), nor has the applicant, ever provided particulars as to what this alleged change was.

17.Given the substantial delay (of over a year) in the applicant’s application for leave and the fact that his intended judicial review is unmeritorious, we agree with the Judge’s refusal to extend time for the applicant.

18.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person