RE SATINDER PAL SINGH

CAMP251/2019

[2021] HKCA 319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 251 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 669/2018)

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J U D G M E N T

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The Court:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam given on 2 August 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 26 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 23 August 2016 and 20 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 5 October 2010 illegally and was arrested by the police on 6 October 2010.  He lodged a torture claim on 9 October 2010. 

3.  The applicant’s claim was based on threats from his relative arising out of a property dispute.  The details of the applicant’s claim have been summarised by the judge at [2] to [8] of the CALL-1 Form.

4.  On 29 February 2012, the Director refused the applicant’s torture claim.  The applicant did not appeal against this decision.

5.  By a Notice of Decision dated 23 August 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk[1] and the persecution risk[2].

6.  By a Notice of Further Decision dated 20 July 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[3], and decided against him.

7.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 23 November 2017, the Board dismissed the appeal on 26 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

8.  At [20] of the Board’s Decision, the Board found that the risk of harm to the applicant upon his return is low.  The Board was also satisfied at [26] that state protection would be available for the applicant and at [28] that internal relocation would be viable.

The judge’s decision

9.  The applicant filed a Form 86 on 18 April 2018 which contained the following grounds for judicial review:

(1)  the Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

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

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

(5)  the Board misdirected itself on the law by considering that the applicant has to experience torture in the past in order to establish substantial grounds for believing that a risk of torture exists;

(6)  procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(7)  irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(8)  irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(9)  irrationality in the Board’s failure to analyze and assess whether state protection exists and misdirected itself as to the extended meaning of state protection;

(10)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(11)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(12)  procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in its decision; and

(13)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

10.  In his affirmation in support of the leave application dated 18 April 2018, the applicant advanced the following grounds for judicial review:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the unfair hearing led the Board to wrongfully question his credibility;

(3)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return; and

(4)  the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [33] to [55] of the CALL-1 Form:

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

34. 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’. 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 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 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.’

35. It was wrong for the Applicant to say the Adjudicator had not given him an oral hearing. He appeared before the Adjudicator on 23 November 2017 and gave evidence.

36. The Applicant complained there was a lack of or insufficient legal representation.

37. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 23 August 2016.

38. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

39. The Applicant complained there were failures by the assigned duty lawyer. He failed to specify what the failures were.

40. The Applicant complained there was a lack of language assistance.

41. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

42. In any event, in the current application a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by a qualified interpreter before the Adjudicator. The Applicant had much exaggerated his language problem.

43. The Applicant complained he received the appeal bundle shortly before the Board hearing.

44. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

45. The Applicant said he received the bundle on 16 November 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 23 November 2017. The bundle was served on the Applicant in time.

46. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult and there was no evidence to suggest the bundle was voluminous or difficult.

47. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

48. The Applicant said in his affirmation that he answered all the questions honestly. That meant he knew what was asked and how to answer. He was not confused.

49. The Applicant failed to prove there existed in India a consistent pattern of gross, flagrant or mass violations of human rights and how it was relevant to his own case. He also failed to prove there was any necessity for the Adjudicator to call for psychological or psychiatric reports.

50. There was no state acquiescence. The Adjudicator considered updated and relevant COI. She concluded there was sufficient state protection.

51. There was no evidence the Adjudicator took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

52. There was no evidence the Adjudicator cherry-picked information.

53. The Adjudicator did not misdirect herself in law. Nor did she apply the wrong standard of proof.

54. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. She had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

55.  The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

Application for extension of time to appeal and grounds for appeal

12.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 28 August 2019, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Bruno Chan on 11 September 2019.

13.  By a summons filed on 10 October 2019, the applicant renewed his application for an extension of time to appeal before this court.  In his affirmation of the same day filed in support of the application, the applicant deposed that:

“1. [DHCJ Bruno Chan] was wrong in law in holding that there was no state acquiescence or involvement.

2.  [DHCJ Bruno Chan] failed to provide detailed reason in support of his decision”

14.  On 29 October 2019, the applicant requested an adjournment of 2-3 months as he was in the process of applying for legal aid.  The Registrar of Civil Appeals noted on 30 October 2019 that legal aid had previously been rejected in the context of his case in the Court of First Instance and directed the applicant to lodge submissions by 15 November 2019, failing which he would be debarred from lodging submissions and the application would be processed on existing materials.

15.  Notwithstanding the directions, the applicant did not lodge any submissions.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

17.  As DHCJ Bruno Chan observed in [2] - [3] of the decision dated 11 September 2019, the applicant was not in fact late in bringing the intended appeal as on 28 August 2019:

“2. The applicant now by a summons issued on 28 August 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A was thought to have ended on 16 August 2019, and hence he believed that he was out of time with the filing of his intended appeal.

3.  Order 3, rule 3 of the Rules of the High Court however provides that the period of the Summer Vacation shall be excluded in reckoning any period prescribed by these rules or by any order or direction for serving, filing or amending any pleading, and hence in the applicant’s case, the period of the Summer Vacation from 1 to 31 August 2019 will be excluded in reckoning the 14-day period for him to file his notice of appeal. He is therefore not late and will not be so up to 14 September 2019.  In the premises it is not necessary for him to proceed with his summons, which is dismissed accordingly.”

18.  Instead of renewing his application for leave to appeal before this court, the applicant should have lodged a notice of appeal before 14 September 2019, as observed by DHCJ Chan.  As he had failed to do so, leave to appeal out of time is therefore required. By a summons filed on 10 October 2019, he renewed his application before us.

19.  The grounds of appeal in the summons are directed towards DHCJ Chan instead of the judge.  The applicant has failed to identify any error in the decision refusing leave for judicial review in the CALL-1 Form.  

20.  As we do not see any prospect of success in the intended appeal, we will not grant extension of time for a hopeless appeal.  The summons filed on 10 October 2019 is dismissed accordingly.