RE BALJINDER SINGH

CACV 290/2021

[2021] HKCA 1539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 290 OF 2021

(ON APPEAL FROM HCAL NO 1035 OF 2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 25 May 2021 refusing to grant extension of time to the applicant for his application for leave to apply for judicial review and dismissing his application for leave to apply for judicial review (“Leave Decision”) [2021] HKCFI 1485.

2.  The intended judicial review was to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 10 November 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 6 July 2017 (“the Director’s Decision”) refusing to re-open his non-refoulement claim which was deemed as withdrawn on 19 August 2016.

Background

3.  The applicant is a national of India. He raised his non-refoulement claim on the basis that he would be harmed or killed by his creditor for failing to repay his loan after his business partner disappeared with his borrowed money.

4.  The background facts have been set out in detail by the Deputy Judge in his decision at [4] - [16]. In gist, the applicant was served with a Notice to Persons making a Non-refoulement Claim (“the Notice”) together with a blank non-refoulement claim form (“NCF”) on 30 June 2016 which he was required to complete and return within 28 days. On 6 July 2016, the Duty Lawyer Service (“DLS”) confirmed in writing to act for the applicant. Despite the Director’s letters dated 21 July 2016 and 11 August 2016 reminding the applicant to return his completed NCF within the required time, the applicant failed to return the same within time. Meanwhile, on 17 August 2016, the DLS informed the Director that they had no further instructions to act for the applicant regarding his non-refoulement claim.

5.  As the applicant failed to return his completed NCF on or before 18 August 2016 and no application for extension of time was submitted by the applicant, the applicant was informed by the Director by way of a letter dated 23 August 2016 that his non-refoulement claim had been treated as withdrawn on 19 August 2016.

6.  On 16 June 2017, the applicant wrote to the Director requesting to re-open his non-refoulement claim, claiming that his life was still in danger if he returned to India. The Director wrote to the applicant on 19 June 2017 that his claim may be re-opened if he could provide sufficient evidence in writing by 3 July 2017 to satisfy an immigration officer that he had not been able to return a completed NCF due to circumstances beyond his control.

7.  By a letter dated 22 June 2017, the applicant replied the Director claiming that he was sick before and sometime suffered from mental problem and that he would provide new information soon. The applicant also claimed that he only spoke Punjabi and did not know how to write in English and that he did not want to return to India claiming that his enemies were still looking for him. No further evidence was provided by the applicant.

8.  On 6 July 2017, the Director refused to re-open the applicant’s claim in light of the lack of medical proof or supporting documents showing the period of his sickness which might have affected his ability to return his completed NCF and to make any request for extension of time for him to do so.

9.  On 12 July 2017, the applicant lodged an appeal to the Board. The Board did not conduct any oral hearing and the applicant’s appeal was considered on paper. On 10 November 2017, the Board dismissed his appeal and confirmed the Director’s Decision. The Board noted that the applicant’s alleged mental problem was never raised previously and based on the information provided, the Board considered that his mental problem could not have been a serious one. The Board also found it doubtful that the applicant could have forgotten about the NCF and refused to accept that the applicant’s alleged language barrier was a problem affecting his understanding of his rights and duties under the non-refoulement claim.

The Leave Decision

10.  On 6 June 2018, the applicant filed a Form 86 together with a supporting affirmation of the same date for leave to apply for judicial review of the Board’s Decision. In the Form 86, the applicant gave no specific particulars or grounds for his intended challenge and merely stated his appeal was refused without hearing. In his supporting affirmation, he merely stated that his life would be in danger if he returned to India and that he was not satisfied with the Board’s Decision without putting forth any proper ground for his intended challenge.

11.  On 25 May 2021, the Deputy Judge refused to grant extension of time to apply for leave for judicial review to the applicant and dismissed his application for leave to apply for judicial review. His reasons are set out in paragraphs 17 - 25 of the Form CALL-1. In gist, the Deputy Judge considered that the four months’ delay was very substantial and excessive and ignorance of the rules could not be accepted as a good or valid reason for their non-compliance. The applicant also failed to provide any proper ground in his Form 86 or supporting affirmation or during the hearing. The Deputy Judge observed that the Board was entitled to find that the applicant had failed to provide sufficient evidence to the satisfaction of the immigration officer or the Board that he had not been able to return his completed NCF as required due to circumstances beyond his control.

The Appeal

12.  On 2 June 2021, the applicant filed his Notice of Appeal against the Leave Decision which did not contain any properly proposed grounds of appeal. The applicant merely stated:

“The High Court failed to show any cause of refusal of my leave. He only say there is no procedural error. Total process is full of error.” [sic]

13.  Pursuant to the directions of the Registrar of Civil Appeals dated 22 July 2021, he filed a Supplementary Notice of Appeal on 30 July 2021, in which he simply asserted the Deputy Judge did not show any ground and that his decision was not correct. The applicant further alleged that the Deputy Judge only copied his decision from the Director and the Board and had no arguments. No grounds of appeal with any specific particulars was shown by the applicant as to how the Deputy Judge erred in his decision.

14.  In his written submissions lodged on 13 September 2021, the applicant alleged that he was in prison and his mind was not ready to reply to the Director. He also complained that his claim was rejected without oral hearing and that the Director and the Board had no right to reject his claim and that all the decisions were incorrect.

15.  At the hearing of the appeal on 12 October 2021, the applicant confirmed that he had nothing to add to the written materials.

Discussion

16.  In relation to the refusal to extend time, the Deputy Judge had correctly identified and applied the principles for determining whether to extend time, as set out in AW v Director of Immigration [2016] 2 HKC 393.

17.  In particular, we agree with the Deputy Judge that the applicant has not provided any satisfactory reason for the delay of four months in the circumstances of the case. Mere unawareness or ignorance of the proper procedures does not constitute a good reason to extend time (see Cordoval Myrna Beniasen & Anor v Torture Claims Appeal Board & Anor [2021] HKCA 1426 at [34]).

18.  Further, it is incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics. Yet, the applicant failed to identify any errors committed by the Deputy Judge in reaching his decision. There are no viable grounds of appeal to challenge the Leave Decision and on this basis alone, the appeal must fail.

19.  As to the applicant’s complaint regarding the lack of oral hearing, these arguments were not canvassed with particulars before the Deputy Judge as the affirmation in support provides no particular as to why it was unjust or unfair not to have a hearing. As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

20.  In any event, they are devoid of merits. Under section 12 of Schedule 1A of the Immigration Ordinance (Cap 115), the Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing. The position remains that at no time did the applicant adduce any evidence or supporting documents to support his bare allegation of sickness after his letter dated 22 June 2017 or to justify his failure to return a completed NCF due to circumstances beyond his control. The applicant therefore has not shown any material prejudice he had suffered for not having an oral hearing. In the circumstances, the applicant’s complaint regarding the lack of hearing before the Board must fail.

21.  In any event, we have reviewed the Board’s Decision and the Leave Decision, and the reasons they gave for their decisions. We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions. There is no basis to disturb the Leave Decision.

22.  Accordingly, there is no merit in the appeal and we dismiss the appeal accordingly.