SIDHU BALBIR SINGH v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 36/2022

[2022] HKCA 1000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 36 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 601 OF 2018)

____________________

____________________

____________________

JUDGMENT

____________________

Hon Chow JA (giving the Judgment of the Court):

1.  On 28 January 2022, the Applicant filed a summons dated 2 December 2021 seeking “leave to appeal out of time” against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 20 September 2019 (“the Order”) refusing to grant him leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 4 August 2017, which dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 August 2016.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of India.  He had previously made a torture claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by the family of his girlfriend who opposed their relationship and/or by the police (his girlfriend’s brother being a police officer).  After his torture claim[1] had been rejected by the Immigration Department, the Applicant raised a non-refoulement claim on the same basis.  He was required to submit a Supplementary Claim Form (“SCF”) under the Unified Screening Mechanism which adopted, inter alia, the provisions of section 37Y of Part VIIC of the Immigration Ordinance, Cap 115, and attend a screening interview before the Immigration Department for the purpose of his non-refoulement claim based on other applicable grounds including BOR 3 risk[2] and persecution risk[3].  The Applicant failed to return the completed SCF despite having been repeatedly reminded to do so for more than one year.  Accordingly, the Director treated the Applicant as having withdrawn his non-refoulement claim and, by a Notice of Decision dated 25 August 2016, refused to allow him to re-open his claim.  Details of the Applicant’s case have been summarised by the Judge at §§1-6 of the CALL-1 Form ([2019] HKCFI 815).

5.  The Applicant appealed the Director’s decision to the Board.  On 4 August 2017, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).  The Board considered that the Applicant had not provided any justification for his failure to return the SCF, and agreed with the Director that the Applicant had failed to provide sufficient evidence to show that due to circumstances beyond his control he had been unable to return the completed SCF.

JUDGE’S DECISION

6.  On 10 April 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.  On 20 September 2019, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“13. In the applicant’s case, a delay of more than five months must be regarded as substantial, for which he did not provide any explanation either in his Form 86 or his supporting affirmation, and as he failed to attend the oral hearing of his application, there was no opportunity to extract any explanation from him either.

14. As for the merits of his intended application, again in the absence of any grounds proposed by him or of any legal error or procedural unfairness or irrationality identified in the Board’s decision, I do not see any reasonably arguable ground or any prospect of success in his intended challenge.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim. As a matter of fact, even up to now the applicant has not submitted or produced his SCF.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for his substantial delay, I refuse to extend time and accordingly his application is dismissed.”

8.  On 20 August 2020, the Judge refused the Applicant’s application by summons dated 7 May 2020 for an extension of time to appeal against the Order.  The Judge did not accept the Applicant’s explanation, namely, that he was unrepresented and was therefore not aware of the requirement to file his appeal within 14 days, as a valid explanation for his substantial delay of more than 7 months to lodge his intended appeal.  More importantly, the Judge considered that the Applicant had failed to provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable (see [2020] HKCFI 1961, at §4-7). The Judge concluded that the Applicant did not have any prospect of success in his intended appeal, and it would be futile to extend time for what appeared to be a hopeless appeal.

THIS APPLICATION

9.  By a summons dated 2 December 2021 and taken out on 28 January 2022, the Applicant applied for leave to appeal out of time against the Order. In his supporting affirmation filed on the same date, the Applicant stated that he was unaware of the 14-day time limit for appeal, and complained that the decision by the Judge was reached unfairly without allowing him an opportunity to clarify his case and the situation in his home country.

10.  In his 4-page written submissions dated 14 February 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims.  He claimed that the Board did not act in a procedurally fair manner in dealing with his application and failed to properly assess his credibility.

DISCUSSION

11.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

12.  In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of an intended appeal is important.  The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

15.  A delay of over 7 months is very substantial.  We agree with the Judge that the Applicant has failed to provide any good explanation for the delay.

16.  Regarding the Applicant’s chances of success of his intended appeal, the Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 20 September 2019, and has failed to raise any viable ground of appeal against the Judge’s decision.  The Applicant’s contention that the Judge did not give him an opportunity to clarify his case is plainly without substance, in view of the fact that he did not attend either hearing before the Judge.

17.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons dated 2 December 2021 is dismissed.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] 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.