RE NISHAN SINGH

HCAL 2839/2018

[2022] HKCFI 320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2839 OF 2018

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons dated 9 December 2021, seeking extension of time to appeal the order of Deputy High Court Judge Suffiad (“DHCJ Suffiad”) dated 11 November 2021 (the “Order”) refusing him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 3 December 2018 (the “Decision”).

2.  The Applicant filed a six-page affirmation plus exhibits in support of his application for extension of time.   In summary, the reason for the delay in lodging the appeal is that he never received the Order; and his grounds of appeal are that the Order is unfair, unreasonable and fraught with irrationality.

The Law

3.  In AW v Director of Immigration and William Lam[1], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1) length of delay;

(2) explanation for the delay;

(3) merits of the substantive application;

(4) prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5) whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

Length of delay and explanation for the delay

4.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the court of Appeal within 14 days after such order.  By 9 December 2021, the time to appeal has expired.  The application for leave to appeal is 14 days out of time.  It is not substantial.

5.  The reason for the delay given by the Applicant is that he never received the Order which he now seeks leave to appeal against.  His case is that he had applied for leave to apply for judicial review on 11 December 2018, but it was not until 11 November 2021, almost three years later, that his application was determined and the Order issued.  In the meantime, since 25 July 2021, he had moved to his new address.  Throughout this period of thirty-five months, he had been continuously checking the Judiciary website for the progress of his application.  It was only on 7 December 2021 that he discovered his application was refused. 

6.  In Re Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346.”

7.  Though good as the explanation sounds, it is not part of his case that he had ever informed the court of his change of address.  Nor has the court ever received any such information from him.  Despite the Applicant said he had been checking the Judiciary website for the progress of his application, he never took the trouble of informing the court of his change of address.  Thus, the underlying reason for the delay is his failure or neglect in informing the court of his change of address.  The application was 14 days out of time.  The delay is not substantial, but the Applicant does not have a valid explanation for the delay.  He has to bear the consequence of his own neglect. 

The Applicant’s case for non-refoulement protection, the Board’s Decision and reasons for making the Order

8.  The Applicant’s grounds of appeal are that the Order is unfair, unreasonable and fraught with irrationality.  Before going into these grounds, it is useful to have a bird’s eye view of the Applicant’s grounds for non-refoulement protection, the Director of Immigration’s reasons for refusing his application for non-refoulement protection, the Board’s reasons for dismissing his appeal against the decision of the Director and DHCJ Suffiad’s reasons for refusing his application for leave to apply for judicial review.

9.  In a nutshell, the Applicant’s case is that his grandfather died in 2018 and bequeathed a parcel of land to him and his two brothers in equal shares instead of to his father and his two uncles.  In 2013, the head of the village committee, Avtar Singh (“Avtar”) who belongs to the Shiromani Akali Dal (“SADP”) political party, told the Applicant and his family that the transfer of land was wrong and the land should have been transferred to his father and two uncles.  The Applicant and his family refused Avtar’s request to share the land with the Applicant’s two uncles.  Thereafter, Avtar and his men threatened to kill the Applicant and his brothers.  The Applicant and his brothers were also assaulted and threatened by their cousins.  For their protection, the Applicant took refuge in a temple in Amristsar until November 2014 when he came to Hong Kong, while his two brothers went to stay with their other relatives.  Subsequently, one of his brothers was poisoned, hospitalised and later died after his discharge from hospital, while his other brother was shot and injured. 

10.  On the basis of the Applicant’s evidence, the Director assessed the attacks and threats to the Applicant to be of low intensity, low frequency and did not accept the asserted ill-treatment had attained a minimum level of severity.  The Director assessed the risk of future harm to the Applicant, if returned to India, to be low; and found as a fact that there were no substantial grounds to believe that there will be any real and substantial risk of the Applicant being harmed or killed if returned to India.  On the basis of the Country of Origin Information (“COI”), the Director further found that state protection and internal relocation were available to the Applicant.  In short, the Director accepted the Applicant’s evidence but assessed the risks to be low.

11.  The Board was unable to confidently dismiss the Applicant’s evidence and claims.  It accepted, inter alia, that the Applicant had a land dispute with his uncles and cousins; that he was subjected to intimidation, threats, and attacks by his cousins; that he and his brothers had to leave their home town for their safety; that one of his brother was poisoned and died and the other was shot.  It disagreed with the Director’s assessment of risk but agreed with the Director that state protection and internal relocation are available to the Applicant.  In other words, the Board also accepted the Applicant’s factual evidence in its entirety but dismissed his claims as a matter of law.

12.  In respect of the Torture Risk, the Board found in paragraph 51 to 61 of the Decision that the ill-treatment suffered by the Applicant does not qualify as “torture” within the meaning of section 37U(1) of the Immigration Ordinance as it is not or will not be inflicted by or at the instigation of or with the consent or acquiescence of his uncles or cousins in their capacity as a public official or by other person acting in an official capacity.  Besides, the risk may be prevented by state protection or avoided by internal relocation.

13.  In respect of the BOR 3 Risk, while accepting that the Applicant would suffer ill-treatment which would constitute cruelty, inhuman, or degrading treatment or punishment if returned to India, the Board considered the risk may be prevented by state protection or avoided by internal relocation: see paragraph 62 to 72 of the Decision.

14.  In respect of the Persecution Risk, the Board found in paragraph 73 to 82 of the Decision that the reasons his uncles and cousins would wish to harm him were purely financial and for personal reasons, and not for a reason set out in the 1951 Convention on the Status of Refugees, namely, his race, religion, nationality, political opinion or membership of a particular social group which the Applicant must prove to qualify for protection under this ground.

15.  As for the BOR 2 Risk ground, the Board found in paragraph 84 and 85 of the Decision that this ground is not applicable because the risk relates primarily to being deprived of life by the government of the home state on an applicant’s return and does not cover risks related to personal disputes. Further, the Board found no evidence which suggests that the humanitarian conditions in India are so dire to render refoulement a violation the Applicant’s right to life in TCAB Decision.

16.  Having gone through the decision of the Board carefully and thoroughly, DHCJ Suffiad was satisfied that the Board had considered all the four applicable grounds for non-refoulement protection under the Unified Screening Mechanism separately and distinctly and dealt with the merits of each limb individually.  He was satisfied that the Decision cannot be said to be in any way unreasonable, irrational, or was made as a result of any error of law or procedural unfairness.  Hence, he refused leave to apply for judicial review.

Grounds of appeal

17.  In paragraphs 12 to 18 of his supporting affirmation, the Applicant complained that the Board disregarded his uncles’ connections with SADP or the Indian Congress Party (“ICP”) or the Bharatiya Janata Party (“BJP”) and that DHCJ Suffiad failed to mention these connections in the Call-1 Form.  He submitted that the oversight of the Board and DHCJ Suffiad in this respect are elements of unfairness, unreasonableness and irrationality in the Decision.

18.  The Board had discussed with the Applicant about his uncles’ connections with SADP, BJP and ICP in paragraphs 23 and 24 of the Decision. When assessing the Applicant’s Torture Risk, the Board said in paragraphs 58 and 60 of the Decision:

“58. In this context, the Board has also taken into his account his claims that the police and government would not assist him because of his uncles’ association and connections to the governing political party. However, while it accepts that there may be some police officers in the [Applicant’s] local area who might be subject to the influence of persons such as his uncles who have connections to the local government and dominant political party, on the evidence and information before it, the Board does not consider that there are substantial grounds to believe that the police force in India or the state of India more generally would deliberately without protection from the [Applicant] in regard to his uncles and cousins and their agents or associates in the claimed circumstances. Nor does the Board accept on the evidence and information before it, that the police or authorities more generally in India, would know or have reasonable grounds to believe that acts of torture would be or had been committed by his uncles or cousins, but that they would fail to exercise due diligence to prevent, investigate, prosecute and punish them.

59. …

60. Further, the [Applicant] has not claimed, and on the available COI, the Board does not accept that there exists in India a pattern of gross, flagrant or mass violations of human rights, that would indicate that there are substantial grounds to believe that there is a real risk he would be in danger of being subjected to torture in the reasonably foreseeable future.”

19.  It is manifestly clear that the Board was aware of the Applicant’s claim about his uncles’ connections with the political parties and took the initiative to discuss with him about those connections during the oral hearing.  It carefully analysed the evidence.  It even assumed in the Applicant’s favour that there may be bent police officers in his locality who may be subject to the influence by his uncles.  But on the Applicant’s evidence, the Board was not satisfied that the police or the authorities would not give him protection.  Though not so argued by the Applicant, the Board took the trouble of examining the available COI but did not consider that there exists in India a pattern of gross, flagrant or mass violations of human rights that would indicate that there is a real risk that the Applicant would be in danger of being subjected to torture if refouled to India in the reasonably foreseeable future.  The Board did not ignore his uncles’ connections or disregard those connections for no reasons.  The Board’s conclusion that the Applicant was not at risk was a considered decision after taking into account all the evidence including the Applicant’s and the COI and applying realism and common sense.

20.  DHCJ Suffiad mentioned the uncles’ connection with SADP in paragraph 11 of the Call-1 Form when summarizing the Applicant’s case.  Though he did not mention anything about ICP or BJP, that does not mean he had not taken those connections into account.  When analyzing the Board’s Decision, DHCJ Suffiad considered the issue of state protection.  He mentioned the Applicant’s claim that the police would not assist him.  He referred to the Board’s view that there may be bent police officers in the Applicant’s locality who would favour his uncles.  He referred to paragraph 58 of the Decision of the Board which I have quoted above.  Obviously, DHCJ Suffiad must have had all these matters in his mind when reviewing the Decision of the Board.

21.  The function of the court in a judicial review law is not to consider the non-refoulement claim afresh.  As was held by the Court of Appeal in Nupur Mst v Director of Immigration[3], the primary decision makers in a refoulement case are the Director and the Board; and the role of the court in a judicial review is not too provide a further avenue of appeal.  As DHCJ Suffiad correctly said in paragraph 30 of the Call-1 Form, the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Usually, the court will not set out the evidence in great detail and it is not necessary to do so.  The fact that DHCJ Suffiad did not mention about the uncles’ connection with ICP and BJP does not mean he has not considered that evidence.   To the contrary, it is amply clear reading the Call-1 Form together with the Decision that he had in fact considered all the connections.  I am unable to find any error of law, procedural unfairness or irrationality in the Decision.  There is no substance in this ground.

22.  In paragraphs 19 to 21 of his supporting affirmation, the Applicant repeated his evidence that one of his brother was poisoned and died while his other brother was shot and he was harmed.  He referred to the BOR 3 Risk and reiterated his fear for his life and argued that he has substantial grounds for believing that he will face a real risk of being subject to torture, cruelty, inhuman or degrading treatment or punishment.  All these issues had been fully considered by the Board and that Decision had been scrutinized by DHCJ Suffiad before refusing his application for leave to apply for judicial review.  There is also no substance in this ground.

23.  As an overall view, the Board basically accepted the Applicant’s evidence on the primary facts.  The Applicant could not have any complaint about such finding.  From these primary facts, the Board made further finding of fact leading to the conclusions summarized above, including availability of state protection and internal relocation.  There is evidence on which the Board could make such finding.  These are finding of fact solely within the province of the Board.  I am unable to find any error of law, procedural unfairness or irrationality in the Decision.  In conclusion, the Applicant has no arguable grounds for the proposed appeal.  His intended appeal has no prospect of success.

Prejudice to the respondent

24.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.   The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other un-qualified claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  The fact that it took thirty-five months for the Applicant’s application for leave to apply for judicial review is evidence of the seriousness of the abuse caused by other un-qualified claimants.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

No questions of general public importance

25.  The application does not raise any questions which are likely to have to be resolved by the courts in any event.

Conclusion

26.  Though the Applicant was only 14 days late, the delay was self-created.  He has no valid explanation for the delay and must bear the consequence of his own neglect in failing to inform the court of his change of address. 

27.  For reasons as explained above, the proposed grounds of appeal are unarguable.  The intended judicial review has no prospect of success.  It would be a futile exercise of its discretion for the Court to grant extension of time to enable the Applicant to apply for a judicial review which is bound to fail. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration.  The application does not raise any questions of general public importance.  Accordingly, the application for extension of time to appeal the Order of this Court is refused.