Ashok Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 468/2022

[2023] HKCA 229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 468 OF 2022

(ON APPEAL FROM HCAL NO 941 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.On 28 November 2022, the applicant, who is acting in person, filed a notice of appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 23 November 2022 (“the Order”) refusing to (1) extend time for the applicant to apply for leave to apply for judicial review; and (2) grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 November 2018. The Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 December 2017.

Background

2.The applicant is a national of India. The applicant entered Hong Kong illegally on 20 August 2015 and was arrested by the police on the same day. On 22 August 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by members of the Shriromani Akali Dal Party (“SAD”) because of his support for the Congress Party (“CP”). Details of the applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By a Notice of Decision dated 14 December 2017, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The applicant appealed the Director’s decision to the Board. On 2 November 2018, the Board dismissed the applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

5.The Board was concerned with the credibility of the applicant’s claim. In particular, despite the applicant’s claim to be an active supporter of the CP, he could not recall the name of his own party leader, failed to specify the purpose of the information he gathered, and that he did not seek help from his party leader if the assigned work caused him trouble (see Board’s Decision at §§40-41). The Board further found that the applicant failed to explain how he escaped from an assault from five to six strangers. Finally, the applicant failed to explain how he would be at risk of being harmed in the future, and in some other part of India if he were to relocate (see Board’s Decision at §§42-43).

The Judge’s Decision

6.On 8 April 2019, the applicant filed a Form 86 against the Board’s Decision, which was considered late.

7.On 23 November 2022, the Judge refused to grant leave to the applicant to apply for judicial review for the following reasons:

“13. As mentioned in paragraph 1, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 2 February 2019. The delay is about 2 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

14. 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).

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

16. 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.”

17. As to the grounds in paragraph 12 above, there is no evidence that he was tortured by the enforcement agencies or the political circles. The other grounds are only assertions or opinions without any evidence in support.

18. The Board had assessed his evidence and, for the reasons above, found that he did not face any real risk of harm from the claimed SAD members, which is the fact of his case.

19. There is no valid reason to challenge the Board’s Decision.

20. 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.

21. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

This Appeal

8.In his Notice of Appeal dated 28 November 2022, the applicant put forward the following ground(s) of appeal (sic):

“Director of Immigration have many error. Only one error is enough for my leave. I want to appeal. This are my grounds see attached page.”

9.The applicant did not provide any attached page with further grounds of appeal.

10.In his 4-page written submissions, the applicant disagreed with the finding of the Board that it was safe for him to return to his home country but failed to show that the judge made errors of law or failed to take account of relevant matters already placed before him, or was otherwise plainly wrong.

11.At the hearing of this appeal, the applicant indicated that he has nothing to add.

Discussion

12.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

13.Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

14.The applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 23 November 2022, and has failed to raise any viable ground of appeal against the Order.

15.The applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person.