CAMP 96/2020
[2021] HKCA 96
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 96 OF 2020
(ON AN INTENDED APPEAL FROM HCAL NO 1191 OF 2018)
________________________
BETWEEN
| | Amanjeet Singh | Applicant |
| | and | |
| | Torture Claims Appeal Board / Non-Refoulement Claims Petition Office | 1st Putative Respondent |
| | Director of Immigration | 2nd Putative Respondent |
________________________
Before: Hon Kwan VP and Chu JA in Court
Date of Written Submission: 22 October 2020
Date of Judgment: 29 January 2021
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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 4 December 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].
2. The applicant filed a summons on 24 December 2019 seeking leave to appeal against that decision out of time, as the 14-day period to file his appeal ended on 18 December 2019. A hearing of the application was conducted on 2 June 2020. On 24 June 2020, the judge handed down his decision refusing to grant leave to the applicant to appeal out of time as the applicant's intended appeal appears to be hopeless[2].
3. On 13 July 2020, the applicant took out a renewed application in the Court of Appeal for leave to appeal out of time against the judge's decision of 4 December 2019.
4. The applicant is a national of India. He is 26 years old. He entered Hong Kong illegally on 10 January 2016 and was subsequently arrested by the police. He raised a non-refoulement claim on 19 January 2016 on the basis that he would be harmed or killed by his girlfriend’s family who opposed their relationship.
The Director’s decisions
5. A screening interview was scheduled on 16 June 2016. The applicant failed to attend the interview as he was suffering from dermatitis and went to the hospital for treatment. The Director then required the applicant to submit a written representation through answering a question sheet to provide information and/or clarification for establishing his claim. The legal representative of the applicant assisted him in answering the question sheet. The Director considered that no further clarification was required from the applicant and assessed the claim on the papers.
6. By a Notice of Decision dated 18 July 2016, the Director rejected the applicant’s claim on BOR 3 risk[3], torture risk[4] and persecution risk[5].
7. By a Notice of Further Decision dated 11 July 2017, the Director rejected the applicant’s claim on BOR 2 risk[6] in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim.
The Board’s decisions
8. The applicant appealed against the Director’s decisions to the Board. The Board conducted a hearing on 25 April 2018.
9. The Board considered that the alleged attack and verbal threats made by the girlfriend’s family have not indicated a real risk that the applicant’s life was at risk or that he would be subjected to ill-treatment or harm as the applicant had not sustained any injuries and nothing eventful happened when he stayed with his uncle after the alleged attack. The Board also found that the applicant’s problem is a private matter which has nothing to do with the government of India. It was further assessed that the applicant has viable option to relocate to other areas in India to avoid the alleged risk and state protection would be available to him in India. Therefore, the Board held that the application failed on all applicable grounds and dismissed the appeal on 12 June 2018.
The intended judicial review
10. The applicant filed a Form 86 and an affirmation on 25 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. He put forward the following grounds for judicial review:
(1) there is procedural unfairness for failing to provide him with screening interview before the Director for his non-refoulement claim;
(2) there is procedural unfairness for failing to provide any hearing for his claim under BOR 2 risk before the Director;
(3) there is procedural unfairness for failing to provide legal representation or assistance for his claim under BOR 2 risk or for his appeal before the Board; and
(4) there is procedural unfairness in the Board’s failure to translate its decision to the applicant.
The judge’s decision
11. The applicant attended the hearing before DHCJ Bruno Chan on 15 August 2019. He submitted at the hearing that he wanted to stay in Hong Kong for another 6 to 7 months to solve his matters and he would go back to his home country thereafter[7]. Considering the nature of the claim, the fact that the applicant was assisted by his legal representative to answer the question sheet without problem and that he was given a rehearing before the Board to fully present his case, the judge found that there is nothing amiss arising from the Director's assessment of the claim on papers complained of in ground (1).
12. The judge rejected ground (2) as the applicant did not provide any information to substantiate a claim under BOR 2 risk even when given a chance to articulate his case before the Board and the judge.
13. Ground (3) was rejected by the judge as high standards of fairness do not require that an applicant must have an absolute right to free legal representation at all stages of the proceedings. The applicant had legal representation to present his case to the Director and he was able to present his case and answer questions before the Board.
14. As for the complaint in ground (4) that he was not given any interpretation or translation of the Board’s decision, even if this was true, the judge did not think this could by itself be considered a proper or valid ground to challenge the Board’s decision.
15. The judge held that the applicant does not have any prospect of success in his intended judicial review and dismissed the application on 4 December 2019.
Grounds of intended appeal
16. The applicant stated the following grounds of appeal in his affirmation filed on 13 July 2020:
(1) the judge was wrong in law in holding that there was no state acquiescence or involvement; and
(2) the judge failed to provide detailed reason in support of his decision.
17. In his written submissions, he put forward the following contentions:
(1) high standards of fairness are required in the determination of a torture claim on the part of the decision-maker;
(2) the Board erred in approaching the matter by simply trying to see if it could find fault with the decision of the Director;
(3) the Board failed to consider matters such as the conditions of the applicant's country of origin; and
(4) the decision-maker is under a duty to act fairly.
Analysis and disposition
18. 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.
19. 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 4 December 2019. The applicant took out a summons at the court below on 24 December 2019. He was late by 6 days. He explained that he did not receive the decision by mail and only found out later when he made enquiry with the court.
20. Considering the short delay and the applicant’s explanation, we will treat his delay as justifiable.
21. In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
22. 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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.
23. The judge did not make any determination in law in relation to state acquiescence or involvement in the decision of 4 December 2019. Therefore, ground (1) is without basis.
24. As for ground (2), the judge gave detailed explanation for rejecting the application in paragraphs 13 to 20 of his decision. Thus, ground (2) is bound to fail.
25. The applicant's complaints against the Board in his written submissions are without basis as they are not supported by evidence. In particular, it is clear from the Board's decision that the Board had made its own assessment on the applicant's claim and duly considered the country of origin information.
26. In any event, it is noted that the applicant submitted at the hearing on 2 June 2020 before the judge that his friend told him that if he would go back to India before his girlfriend got married, her family would kill him. He further stated that his problem would be solved after his girlfriend got married in 9 months[8]. Several months have passed since that hearing. Based on his own admission, his problem will be solved shortly. It is reasonable to anticipate that his problem would have been solved by the time he is repatriated to India. Under these circumstances, there is no reason why he should be entitled to non-refoulement protection in Hong Kong.
27. For the above reasons, the applicant does not have any prospect of success in the intended appeal. We refuse to extend time to appeal against the judge’s decision of 4 December 2019 and dismiss the summons filed on 13 July 2020.
| (Susan Kwan) | (Carlye Chu) |
| Vice President | Justice of Appeal |
The Applicant, acting in person
[1] [2019] HKCFI 2473
[2] [2020] HKCFI 1157
[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[7] See record of hearing of 15 August 2019.
[8] See record of hearing of 2 June 2020.