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

CAMP 477/2021

[2022] HKCA 463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 477 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2743 OF 2018)

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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 16 July 2021, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].

2.  On 30 August 2021, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as there is no reasonable prospect of success in the intended appeal^[2].

3.  On 21 October 2021, the applicant filed the present summons with the Court of Appeal seeking to extend time for appeal against the decision refusing leave to apply for judicial review.

4.  This summons should be treated as a renewed application for leave to appeal out of time against the decision dated 16 July 2021 (Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8).

5.  The applicant is a national of India.  He is 34 years old.  He entered Hong Kong on 17 June 2016 as a visitor and overstayed.  He surrendered to the Immigration Department on 4 July 2016 and raised a non-refoulement claim on the same day.  He claimed that if refouled, he would be killed by two individuals by the name Dimple Chadha (“Chadha”) who was a member of the Legislative Assembly from the Bharatiya Janata Party (“BJP”), a ruling party in central India, and his assistant Ranjit Singh (“Singh”), because the applicant had in 2015 set up a trap to catch Chadha red-handed while Chadha demanded a bribe from the applicant.  The applicant also had an affair with Singh’s wife in early 2014.  Because of the above matters, the applicant claimed he was assaulted and kidnapped by people of Chadha and Singh in early 2016.  On both occasions he was beaten and suffered bodily injuries.  While being falsely imprisoned, he managed to escape and hide.  He reported to the police but this was of no avail and the police did not investigate the matter.

The Director’s decisions

6.  By a Notice of Decision dated 8 January 2018, the Director rejected the applicant’s claim on torture risk^[3], BOR 2 risk^[4], BOR 3 risk^[5], and persecution risk^[6].

7.  On 17 January 2018, the applicant appealed against the Director’s decisions to the Board. An oral hearing was conducted on 2 November 2018.  The Board did not accept any of his claims and considered that they had been fabricated in their entirety.  It was found that relocation was a reasonable option for the applicant, and the Board was not satisfied that there was a real chance, a real risk or substantial or strong grounds for believing that he would be subjected to harm amounting to torture, CIDTP/torture, a risk to his life or persecution from either Singh or Chadha upon his return to India.  Since his claim for non-refoulement protection failed on all applicable grounds, the Board dismissed the appeal on 30 November 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 3 December 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  In his affirmation he said that he was not satisfied with the decision of the Immigration Department and requested justification of his case.

The judge’s decision

9.  The judge agreed that there was nothing unreasonable for the Board not to accept the applicant’s story as he had no factual basis to support his claim.  He applied Re: Kartini [2019] HKCA 1022 at §13, namely, that the assessment of evidence and Country of Origin Information and risks of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) and the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality.  The judge did not find any error of law or procedural unfairness in the Board’s decision and the findings of the Board were not Wednesbury unreasonable or irrational.

10.  Given that there was no evidence which shows that the applicant had any reasonable chance of success in his intended judicial review, leave was thus refused and the application was dismissed on 16 July 2021.

Grounds of intended appeal

11.  The applicant did not provide any grounds of appeal in his affirmation for this application.

12.  His written submissions repeated that Chadha and Singh were his enemies, and that Singh was a leader of BJP which kills other religious people. He claimed that he was a minority representative and that Chadha and Singh wanted to kill him.

Analysis and disposition

13.  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.

14.  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 16 July 2021.  The applicant took out a summons for leave to appeal out of time at the court below on 5 August 2021.  He was late by 7 days.

15.  The applicant gave no reasons in his supporting affirmation filed with the court below as to why he was late.

16.  Leaving aside the absence of explanation for the relatively short delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^[7].

17.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.  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.  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.

19.  In the present application, the applicant has not put forward any ground to reverse the judge’s decision.  The applicant failed to show he has any prospect of success in his intended appeal.  We refuse to extend time to appeal against the decision of the judge of 16 July 2021 and dismiss the summons filed on 21 October 2021.