SARABJIT SINGH v. TORTURE CLAIMS APPEAL BOARD/ NON- REFOULEMENT CLAIMS PETITION OFFICE

CACV 549/2020

[2021] HKCA 1884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 549 OF 2020

(ON APPEAL FROM HCAL NO 1724 OF 2018)

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JUDGMENT

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

1.  On 17 August 2021, the Applicant failed to attend the hearing of his appeal against an order of DHCJ KW Lung (“the Judge”) given on 12 May 2021 in which he refused to grant an extension of time for the applicant’s application for leave to apply for judicial review in respect of his non‑refoulement claim and dismissed his leave application (“the Judge’sDecision”). As the Applicant had failed to attend the hearing of his appeal on 17 August 2021, and as in any event, no merits were shown on the papers, this court (Yuen and Chow JJA) gave judgment on the same day ([2021] HKCA 1232) dismissing the applicant’s appeal.

2.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 31 August 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal on the following grounds:

(1)  The Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reasons justifying the decision.

(2)  The Judges were wrong as a matter of law for not having applied the principle of irrationality to the Director’s decision refusing his application for leave for to apply for judicial review.

(3)  The Judges failed to apply the law properly.  

4.  The applicant did not apply to set aside this court’s order or to explain why he had failed to attend the hearing of his appeal.  On 31 August 2021 the Registrar of Civil Appeals gave directions for the applicant to lodge his written submissions on or before 14 September 2021.  He did not do so until 28 September 2021.  No explanation was given for his delay. 

5.  In his written submissions, he claimed the decision disposed of his torture claim and made him liable to be removed, which entailed significant implications for his substantial right not to be subjected to torture and his right to non-refoulement protection.  He quoted cases contending that high standards of fairness are required in the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing his credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is concerned with the late filing of notice of appeal to the Board. However, he did not explain or elaborate on how the aforesaid cases and legal provisions were relevant to his case.

6.  The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, we proceed to determine this application on paper. 

7.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

8.  The applicant’s grounds of intended appeal as set out in the Notice of Motion and his written submissions were vague and general only.  Having regard to the judgment of this court, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.    

9.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

10.  By reason of the above, the Notice of Motion filed on 31 August 2021 is dismissed.

CACV 549/2020

[2021] HKCA 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 549 OF 2020

(ON APPEAL FROM HCAL NO 1724 OF 2018)

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_____________________

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J U D G M E N T

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

1.  This appeal was scheduled to be heard on 17 August 2021 at 10:00 a.m. Even by 11:05 a.m, the appellant had not appeared, and telephone calls from court staff to him received no response. In the circumstances, the appeal was dismissed. In any event, for the reasons set out below, it would appear from the papers that there were no merits in the appeal. On 12 May 2020, DHCJ K W Lung (“the Judge”) refused to grant an extension of time for the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 20 March 2018 and dismissed the leave application. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 May 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 29 September 2020, DHCJ C P Pang granted an extension of time to file a notice of appeal against the Judge’s decision. 

3.  On 12 October 2020, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

4.  The applicant is a national of India.  He came to Hong Kong on 13 January 2013 as a visitor and was permitted to stay until 27 January 2013. He did not depart and overstayed.  More than a year later, on 20 February 2014, he surrendered to the Immigration Department.  He lodged a non-refoulement claim by way of written representation on 20 February 2014 and 18 March 2014. He withdrew his application on 5 December 2016.  On 30 December 2016, he lodged a non-refoulement claim again.

5.  His claim was made on the basis that if refouled, he would be harmed or killed by his girlfriend’s brother, Sukhdev who opposed the applicant’s relationship with his sister.  Sukhdev (whose family owned land which bordered that of the applicant’s family) then commenced a land dispute with the applicant’s family. The factual background was succinctly summarized by the Judge in [1] – [3] of the Form CALL-1 ([2020] HKCFI 762).

6.  By a Notice of Decision dated 31 May 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against him.

7.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 22 February 2018 during which he gave oral evidence and answered questions put to him by the Board.  For reasons given in its decision dated 20 March 2018, the Board dismissed the applicant’s claim.  Although the Board had reservations on the applicant’s account of event, it gave him the benefit of the doubt and accepted the facts he alleged which preceded his departure from India.[5] However, even on his own account of events, there were only 2 incidents involving assaults against the applicant from 2006 to 2012, and he did not sustain any serious injury from those incidents.[6] More importantly, there was no evidence of state involvement or acquiescence.[7]  The applicant said he did not receive prompt attention at the hospital and the police station, but he only speculated that that was because Sukhev, a member of the political party SAD, was friendly with the personnel. Relevant Country of origin information (“COI”) suggested that reasonable state protection would be available to the applicant upon his return to India[8] and in any event internal relocation is a reasonable and viable option.[9]  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

8.  On 23 August 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  By then he was late with his application.  Pursuant to Order 53 rule 4(1) of the Rules of High Court (Cap 4A), applicants should apply for leave to apply for judicial review promptly and in any event within 3 months from the date when the grounds for the applications first arose.  The applicant had delayed his application for more than 2 months, although he claimed before the Judge that that was because he was detained in prison between September 2017 and July 2018.

9.  In his supporting affirmation, he set out the following grounds for his intended challenge (as summarized by the Judge at [10] of Form CALL-1):

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement.

(2)  The Adjudicator acted in a procedurally unfair manner.

(3)  The Board’s Decision was unreasonable or irrational in the public law sense, or are a result of procedural errors of unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(5)  The hearing bundle was given to him shortly before the hearing and was without translation, causing confusion at the hearing.

(6)  The Board had relied upon hearsay news or outdated cases, making speculation that he would be safe if he returned to India.

10.  The Judge held an oral hearing of the application, and in his decision dated 12 May 2020, refused to extend time for leave to apply for judicial review and dismissed the leave application. The reasons for the refusal were set out at [11] – [17] of the Form CALL-1 as follows:

“11. The applicant appeared before me. He confirmed that he was free to express himself before the Immigration officer and the Adjudicator. Also, he explained that he was detained in prison between September 2017 and July 2018, which is why he was late in his application.

12. It is obvious that the Board, having accepted his facts, applied the relevant statutory provisions and Convention to the facts.

13. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision[-maker] and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

14. I shall deal with his grounds.

15. He has confirmed that he had no problem with the hearing bundle for the appeal. Ground (5) fails.

16. All other grounds do not sustain as they are opinions without any evidence or particulars in support of them.

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

11.  The Judge further directed that if the applicant intended to appeal against his decision and order, he must seek leave within 14 days from the date of his order. 

12.  On 25 May 2020, the applicant issued a summons seeking leave to appeal against the Judge’s decision to the Court of Appeal.  Following the Court of Final Appeal case of H v Director of Immigration and AH v Director of Immigration, FACV 1 & 2 of 2020, [2020] HKCAF 22, an applicant for leave to apply for judicial review may appeal against a judge’s decision as of right even though he had been late in making the application.  Accordingly, the applicant’s application was treated as an application for extension of time to bring an appeal, which was duly allowed by the Judge on 29 September 2020. 

Appeal to this Court

13.  On 12 October 2020, the applicant filed his Notice of Appeal, in which he stated he sought to appeal against the decision of DHCJ Pang dated 29 September 2020.  That was presumably in error, as he must be appealing from the Judge’s decision refusing him an extension of time to apply for leave to apply for judicial review, and dismissing the leave application, dated 12 May 2020.  As such, we will treat the present appeal as one against the Judge’s decision dated 12 May 2020.

14.  In the Notice of Appeal, the applicant advanced the following grounds of appeal:

(1)  The Director had failed to appreciate or give proper weight to state acquiescence in his case and it led to an unfair outcome of rejecting his non-refoulement claim.

(2)  The Director, the Board and the Court had failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the decision.

(3)  The Board had failed to make sufficient enquiry before finalizing the determination and accused the applicant for failing to give credible evidence to prove the material elements of his claim.

(4)  The Board failed to give sufficient chance to the applicant to arrange relevant evidence for the appeal hearing before the Board.

(5)  It was a clear case of unfair attitude shown by the Director and its decision should be void.

15.  On the same day that the applicant filed his Notice of Appeal, he consented to the appeal to be heard by 2 judges of the Court.

16.  In compliance with the Court’s directions of 22 June 2021, the applicant lodged his written submissions on 19 July 2021.  In those submissions, he referred to Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the propositions that (1) high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) the courts should review the decision of the Board with rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.  The applicant also mentioned section 37ZT of the Immigration Ordinance (Cap 115) without any explanation or elaboration.

Legal principles

17.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  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 on appeal, which operates as a re-hearing, the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

18.  The applicants did not in his Notice of Appeal or written submissions provide any ground of appeal against the Judge’s decision or identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.

19.  Upon our careful review of the Judge’s decision, we are satisfied the Judge has adopted the correct approach in refusing to grant an extension of time to the Applicant to apply for leave to apply for judicial review.  The Judge also analysed the merits of the intended judicial review and dealt with the grounds of relief raised by the applicant.  The applicant did not in his notice of appeal or in his written submissions raise any grounds showing any error in law or that the Judge was plainly wrong.

20.  The Board rejected the applicant’s non-refoulement claim as he failed to establish his case on all applicable grounds even on his own account of events, and it is wrong for the applicant to say in Ground (3) of the Notice of Appeal that the Board ruled against his case on the issue of credibility.  The other grounds against the Board were vague and general, and cannot be effective grounds to support a judicial review: see Re Salim Ahmed[2020] HKCA 244.

21.  Having considered the material before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny and the Judge was plainly right to refuse to grant an extension of time and to dismiss the leave application. 

Order

22.  For the above reasons, this appeal is dismissed.