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

CAMP 546/2022

[2023] HKCA 398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 546 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 690 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“Judge”) dated 6 September 2022 refusing to grant the applicant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 25 January 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 16 November 2018 rejecting his non-refoulement claim.

2.On 1 December 2022, the Judge granted an extension of 14 days from that date for the applicant to appeal, but the applicant failed to file an appeal within the extended time.

Background

3.The applicant is an Indian national born in 1970.  He last arrived in Hong Kong as a visitor on 16 March 2013 and was permitted to stay until 30 March 2013.  However, he overstayed and only surrendered to the Immigration Department on 20 October 2016.  He made a non-refoulement claim by written signification dated 18 November 2016.  His claim is based on the fear that if he returned to India, he would be harmed or even killed by one Mohit Kumar and his people because of a loan dispute.

4.The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 16 November 2018, the Director rejected the claim. 

5.The applicant appealed to the Board against the Director’s decision.  As the Board noted in its decision, the applicant wrote two letters to the Board dated 28 December 2018 and 1 January 2019 respectively asking that no hearing be held and that his case be determined based on the available information and documents.  Accordingly, the Board proceeded to determine the appeal without an oral hearing.

6.In its decision dated 25 January 2019, the Board dismissed the appeal and affirmed the decision of the Director.  The reasoning of the Board was summarised by the Judge as follows:

“ 9.  The Board proceeded to consider the applicant’s claim on paper.  It first observed that some material aspects of the applicant’s claim were vague and inherently contradictory [2]-[3.5].  In particular, the Board noted that the applicant was unable to name MK’s alleged connection with the political group; that he was vague about the details of the assaults; that his evidence contradicts with the country of origin information (“COI”); that his evidence on the events were inherently inconsistent and that his delay in lodging the non-refoulement claim was also detrimental [5.1]-[7].  In assessing the individual grounds, the Board found that it was a private dispute without state involvement [12]-[14]; that the alleged injuries did not have sufficient severity [18]; that COI showed that internal relocation was a viable option [22]-[27].

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.”

The Judge’s decisions in the court below

7.On 12 March 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form.  In the accompanying affirmation, the applicant simply said he did not agree with the decision of the Board and could not go back to his country as his life was in danger there.

8.The Judge, having considered the application on the basis of the documents alone, issued his decision on 6 September 2022, refusing to grant leave to apply for judicial review.  The reasons were set out at [13] – [18] of the Form CALL‑1 as follows:

“ 13. 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).

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

15. 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.’

16. Those grounds in paragraph 12 above are not valid reasons to challenge the Board’s Decision.

17. 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.

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

9.The Judge’s order was sent by post to the applicant but it was returned undelivered.  It was therefore re-sent to the applicant by post at his last known address on 25 October 2022.  On 31 October 2022, the applicant filed a summons in the Court of First Instance seeking an extension of time to appeal.  In his decision dated 1 December 2022, the Judge extended the time for filing a notice of appeal for 14 days from that date, because the applicant had filed his summons within 14 days after the order was re-sent to him.

10.The applicant, however, failed to avail of that extension and failed to file a notice of appeal by 15 December 2022.

The renewed application before this Court

11.Instead, by summons filed on 23 December 2022, the applicant made another application to this court for extension of time for him to appeal against the decision of the Judge refusing to grant leave for judicial review.  In the summons and the accompanying affirmation, the applicant stated that he was late due to lack of knowledge and insufficient resources.

12.In his written submissions lodged on 30 December 2022, the applicant states that many things in his case have been ignored and the decisions are not transparent.  The situation in his country is very different from what the decision-makers thought.  He would be in danger in his country and his life would become worse if he returns there.  Nevertheless he will go back to his country, but he asks for time so that he can solve his problems.  His enemies are strong and can use their political influence with the police and other authorities.

13.Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.The applicant has been given an extension of time by the Judge.  He has failed to explain why he did not file a notice of appeal within the extended time.  In any event, having considered the available materials, we are satisfied that a further extension of time should be refused because of the lack of merits in the intended appeal. 

15.In the present case, pursuant to the applicant’s own request, the Board did not hold an oral hearing and proceeded to determine the applicant’s appeal on paper.  The Board eventually came to the conclusion that the applicant’s story could not be given any weight, because of the many issues the Board had with the credibility and reliability of the applicant’s version of events which were not resolved because the applicant chose not to attend any oral hearing.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its decision.  It has to be borne in mind that judicial review is not a further avenue of appeal.  The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the ultimate decision.  The applicant has failed to establish any such public law grounds.

16.The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced.  The applicant has failed to raise any grounds of appeal to show how the Judge has erred in refusing to grant leave for judicial review.  Having considered the materials available, we share the Judge’s view that there is no merit in the underlying application for leave to apply for judicial review. 

17.We do not see any prospect of success in the intended appeal.  The applicant’s summons is accordingly dismissed.