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

CAMP 469/2022, [2023] HKCA 510

On An Intended Appeal From [2022] HKCFI 2290 &

[2022] HKCFI 3231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 469 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2284 OF 2018)

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J U D G M E N T

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

1.On 9 November 2022, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 3 November 2022 refusing to grant an extension of time for the Applicant to appeal against the Judge’s earlier order dated 3 August 2022 refusing to grant leave to apply for judicial review (“the Order”).

2.The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 15 October 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 July 2017.

3.Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.The Applicant is a national of India. He entered Hong Kong illegally on 27 October 2015, and was arrested by the police on the next day for being an illegal immigrant. On 31 October 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his parental uncle due to a land dispute which started in 2012. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 2290).

5.By a Notice of Decision dated 19 July 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.The Applicant appealed the Director’s Decision to the Board. On 15 October 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§9-10 of the CALL-1 Form, as follows:

“[9] The Board considered the country of origin information (‘COI’) and the relevant principles guiding the assessment of the applicant’s claim [26]-[27]. It noticed that the applicant advanced certain aspects that were not explored before the Director and also identified several discrepancies in the evidence in relation to the material aspects of his claim, such as the alleged assaults [33]-[43]. The Board therefore cast grave doubts on the applicant’s credibility [44].

[10] In evaluating the individual grounds, the Board further noted that there was no state involvement nor acquiescence [48]; that, as shown in the COI, state protection and internal relocation were viable options [52]-[56].”

7.On 22 October 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86. In his supporting affirmation, he merely stated that he was not satisfied with the Board’s Decision, and had “problem” in his country.

THE JUDGE’S DECISION

8.On 3 August 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[13] In his affirmation in support of his application, the applicant said that he disagreed with the Board and he had problem in his country.

[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 Decisions should be examined with rigorous examination and anxious scrutiny.

[16] …

[17] Those reasons in paragraph 13 above are not valid reasons to challenge the Board’s Decision.

[18] 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.

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

9.On 3 November 2022, the Judge refused the Applicant’s application by letters dated 8 and 11 October 2022 for an extension of time to appeal against the Order ([2022] HKCFI 3231).

THIS APPLICATION

10.By a summons taken out on 9 November 2022, the Applicant applied for leave to appeal out of time against the order of the Judge dated 3 November 2022.

11.In his supporting affirmation filed on 9 November 2022, the Applicant said that he understood that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave to apply for judicial review, but failed to identify what that ground might be.

12.In his written submissions dated 5 December 2022, the Applicant set out some general principles of law relating to non-refoulement claims, but failed to explain how those principles were relevant or applicable to his case.

DISCUSSION

13.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

14.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

16.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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

17.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 is an error 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.

18.The Applicant has failed to raise any viable ground of appeal against the Order. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 9 November 2022 is dismissed.

The Applicant, acting in person