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

CAMP 69/2024, [2024] HKCA 933

On appeal from [2022] HKCFI 1074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 69 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 206 OF 2019)

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J U D G M E N T

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

1.On 19 April 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.On 16 January 2024, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance. The summons was dismissed by the judge on 20 March 2024[2].

3.On 17 April 2024, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.The applicant is a national of India. He entered Hong Kong as a visitor on 5 October 2016 and subsequently overstayed. He surrendered to the Immigration Department on 1 November 2016. He was convicted of the offence of breach of condition of stay on 27 January 2017. A removal order was issued against him by the Immigration Department on 7 February 2017, which was served on him on 23 February 2017. He lodged a non-refoulement claim on the same day on the basis that, if refouled, he would be harmed or killed by his uncle and his people as his uncle wanted to occupy the land of the applicant’s father.

The decisions of the Director and the Board

5.By a Notice of Decision dated 26 April 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.The applicant filed his Notice of Appeal with the Board on 16 May 2018. He attended a hearing before the Board on 2 November 2018. The Board considered that the applicant’s allegations regarding his uncle’s position in a gang group and political affiliation are not supported by reliable evidence. The Board held that the applicant’s evidence failed to show that severe pain or suffering within the definition of torture had been inflicted upon him by his uncle or was inflicted for any reason based on discrimination of any kind. It was also found that the applicant’s case is based on a family dispute without any involvement of government or political authorities. Besides, the Board considered that the facts of the applicant’s case do not engage any BOR 2 risk. The Board further held that the applicant’s evidence does not show he has suffered any harm that met the threshold of minimum level of severity. As the applicant’s claim is not based on the fear of being persecuted on account of race, religion, nationality, membership of a particular social group or political opinion, nor is his life or freedom threated on account of any of the said issues, the Board found that the applicant has failed to establish persecution risk. The Board rejected the appeal on 8 February 2019 as the applicant failed to establish his case on all applicable grounds.

The intended judicial review

7.On 22 January 2019, the applicant filed a Form 86 and an affirmation in HCAL 206/2019 to seek leave to bring judicial review against the Director’s decision. In his affirmation in support, he only reiterated the problems he faced in his home country and the Director’s conclusion, without specifying any grounds for his intended challenge.

The judge’s decision

8.DHCJ K W Lung considered the leave application on paper as the applicant did not request for an oral hearing. Since the Board handed down a decision refusing the applicant’s appeal against the Director’s decision after the applicant filed the leave application with the court, the Director’s decision is no longer susceptible to judicial review. The Board’s decision has superseded the Director’s decision and represents the final decision on the claim at the end of its processing: Re Moshsin Ali [2018] HKCA 549. The judge treated this as an irregularity under Order 2 rule 1(1) of the Rules of the High Court and amended the Form 86 pursuant to Order 20 rule 8 and Order 53 rule 3(6) of the Rules of the High Court, to the effect that the Board is the proposed respondent and the Director the interested party.

9.The judge held that the applicant failed to raise any valid ground to challenge the Board’s decision. The judge further found there is no error of law or procedural unfairness in the Board’s decision. He concluded that there is no realistic prospect of success in the intended judicial review and dismissed the leave application on 19 April 2022.

Grounds of intended appeal

10.The applicant attached his grounds of appeal to his present summons which may be summarised as follows:

(1)  The judge only considered the old case bundle but did not give the applicant time to prove his current situation while the danger and torture still persist;

(2)  It is hard for a detainee to get the supporting documents and evidence related to his claim.

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 order was made on 19 April 2022 and the applicant was late by more than 18 months when he took out the summons at the court below on 16 January 2024, exclusive of the court’s summer vacation in August. He explained that he did not receive the correspondence informing him that his application had been refused.

13.The court’s record shows that the address for service previously provided by the applicant to the court is incomplete so the court had enquired about the applicant’s latest address from the Immigration Department. On 19 April 2022, the court sent the judge’s decision to the applicant’s last reported address as provided by the Immigration Department by post, which was not returned by the post office. It was noted that the said address is different from the address stated in the applicant’s present summons and the applicant had not filed any notice of change of address for service with the court. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Under these circumstances, the applicant’s substantial delay is inexcusable. The applicant must therefore show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

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.The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information 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.The address of the applicant which was previously provided by the Immigration Department to the court reflected that the applicant was not under detention at certain point during the time of these proceedings. There had also been a long lapse of time since the decision of the Court of First Instance. However, the applicant still did not adduce any further evidence to prove his case as alleged in the present application. He also failed to show 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.

17.For the above reasons, the applicant’s grounds are just bare assertions without basis and there is no prospect of success in the intended appeal. Therefore, we refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 19 April 2022 and dismiss the summons filed on 17 April 2024.

The Applicant, acting in person