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Re Bhupinder Singh

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date23 July 2021
Neutral Citation[2021] HKCA 1026
Year2021
Judgement NumberCAMP227/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP227/2020 RE BHUPINDER SINGH

CAMP 227/2020

[2021] HKCA 1026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 227 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 794 OF 2017)

________________________

RE: BHUPINDER SINGH Applicant

________________________

Before: Hon Yeung VP and Chu JA in Court

Date of Written Submissions: 2 February 2021

Date of Judgment: 23 July 2021

________________________

J U D G M E N T

________________________


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

Introduction

1. By the decision dated 19 March 2019 (“the Decision”), Deputy High Court Judge Josiah Lam (“Judge Lam”) refused to grant leave to the applicant 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 29 September 2017. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 11 January 2017 rejecting the applicant’s non-refoulement claim.

2. The applicant lodged a summons on 4 June 2019 seeking an extension of time to appeal against the Decision. The application was heard before Deputy High Court Judge Bruno Chan (“Judge Chan”) on 28 June 2019 and by his decision dated 21 August 2019 (“the Leave Decision”), Judge Chan, having considered the length of delay, reason for the delay and the underlying merits of his application, dismissed the applicant’s summons on the basis that it would not be in the interest of justice to grant an extension of time.

3. On 1 December 2020, the applicant took out a summons which we shall treat a renew application for time extension to this Court (see paragraph 17 below). Pursuant to the directions of the Registrar of Civil Appeals given on 19 January 2021, the applicant lodged his written submissions on 2 February 2021.

4. Under Order 59, rule 14A(1) of the Rules of the High Court (Cap. 4A), this Court may determine an application for an extension of time to appeal without an oral hearing. Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5. The Applicant is a national of India who arrived in Hong Kong on 7 October 2013 as a visitor and was permitted to stay until 21 October 2013. He overstayed and was arrested by the police on 1 November 2013. He was then referred to the Immigration Department for investigation. On 3 November 2013, he raised a non-refoulement claim on the basis that if he returned to India, he would be harmed or even killed by his girlfriend Lakhvir Kaur’s (“LK”) family as they objected her relationship with the applicant. The factual background of this case was succinctly set out by Judge Lam at [1] - [9] of the Form CALL-1.[1]

6. By the Notice of Decision dated 11 January 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

7. The applicant appealed the Director’s decision to the Board and the appeal was heard on 13 September 2017. By its decision dated 29 September 2017, the Board dismissed the appeal and confirmed the Director’s decision. For the reasons and analysis stated in [42] to [69] of its decision, the Bound found the applicant’s evidence unconvincing and implausible. The Board rejected his claim that he has a well-founded fear of being persecuted for reasons of his relationship with LK, finding that his story was a fabrication for the purpose of his non-refoulement claim. For the aforesaid reason, his appeal was dismissed on all applicable grounds.

The Judge’s decision

8. On 20 October 2017, the applicant filed his Form 86 for leave to apply for a judicial review of both the Director’s and the Board’s decisions. As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is not susceptible to judicial review once an appeal to the Board had been and dealt with. Judge Lam had rightly proceeded to only deal with the application in relation to the Board’s decision.

9. The applicant set out the grounds of his intended challenge against the Board’s decision in “Enclosure 2” attached to his Form 86. In gist, he said that at the time of preparing his appeal to the Board, he was detained in the Immigration Detention Centre in Tuen Mun. He complained that the Adjudicator failed to make sufficient enquiry and failed to consider that he had limited option to adduce evidence and that he was deprived of sufficient chance to arrange relevant evidence due to his detention.

10. The applicant was absent at the hearing fixed for 10 August 2018 and Judge Lam proceeded to consider his application on paper. By his decision dated 19 March 2019, Judge Lam refused to grant leave to the applicant to apply for judicial review. After summarizing the background of the case, as well as the decisions of the Director and the Board, Judge Lam gave the following reasons at [26] – [31] for his refusal to grant leave:

“Discussion

26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

27. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinizing 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 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.”[7]

28. The Applicant complained the Adjudicator failed to consider he had limited or no option to adduce proof. He said he had been detained at the Immigration Detention Centre in Tuen Mun. He also complained the Adjudicator failed to give him sufficient chance to arrange relevant evidence.

29. According to paragraph 10 of the Director’s decision dated 11 January 2017, the Applicant was arrested by the police for using an identity card relating to another person’ and illegal employment. He was sentenced to 15 months ‘imprisonment on 26 October 2016. I accept the Applicant was in custody when the Adjudicator interviewed him on 13 September 2017. However, there was no evidence that he was deprived of any chance to present his case as much as he could. There was no evidence he was prevented to arrange his evidence or proof. There was no evidence he complained to the Adjudicator that he had been prejudiced to any extent. There was also no evidence he had applied for adjournment before the Adjudicator for cause.

30. The Applicant complained the Adjudicator failed to make sufficient enquiry. However, he failed to give specifics.

31. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious...

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