RE MALKIT SINGH

CAMP 509/2021

[2022] HKCA 1707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 509 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 338 OF 2017)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  On 19 September 2017, M Poon J (as she then was) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). No reasons were given. Under Order 53 r.3(4) Rules of the High Court (“RHC”), 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.

2.  However, the applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 24 August 2021 for extension of time to appeal against the JR Decision.  On 3 November 2021, the summons was dismissed by DHCJ Suffiad (who was aware of the absence of reasons given for the JR Decision) after careful scrutiny of the applicant’s case. 

3.  On 11 November 2021, the applicant filed a summons in CAMP 509/2021 (“the Summons”) applying to this Court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 11 November 2021, the applicant lodged his written submissions on 25 November 2021. 

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is an Indian national.  He is a Sikh.  It is the applicant’s case that in 1995, he started a business offering transportation services to customers in Tarn Taran in Punjab, India.  Because of the nature of his work, he had to contact people of different religions.  From around 1995 to 2008, he received threats from orthodox Sikhs warning him that he should not maintain any relationship with non-Sikhs, or he would be harmed or killed.  On one occasion while sitting in his car, 5 to 6 people grabbed him by the neck and dragged him out.  As some of the attackers wore turbans, he believed that they might be orthodox Sikhs.  People inside his car intervened before the group assaulted him.  He did not report the matter to the police. 

7.  Further, he alleged there was growing tension between the Ravidassia, a breakaway Sikh sect, and the Sikhs.  One day in 2008, he was attacked by a group of unknown males armed with sticks and weapons.  The rear window of his car was damaged but he did not sustain any injuries.  He did not report the matter to the police.

8.  In 2009, riots broke out in a few cites in North India after a famous Ravidassia person was murdered overseas.  Violence erupted in many parts of Punjab.  On 25 May 2009, while the applicant was driving some passengers to Tarn Taran from Jalandhar, angry rioters filled up the streets in Jalandhar vandalizing properties and setting fire to parked vehicles.  Passers-by threw stones at his vehicle.  The applicant managed to drive off and did not sustain any injury. The applicant felt that the riot was an opportunity for his enemies to kill or torture him.  Fearing for his safety, he left India for Hong Kong.  

9.  The applicant arrived in Hong Kong on 2 June 2009 as a visitor and was permitted to stay until 16 June 2009.  He overstayed and was arrested by the police on 18 June 2009. He was then referred to the Immigration Department for investigation and on 20 June 2009, he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment alleging that if refouled, he would be harmed or killed by orthodox Sikhs.  Moreover, the applicant claimed that people of the Sikh community will harm him and his wife upon their return to India as he married a Christian woman in Hong Kong and the Sikh community will not accept their marriage. 

10.  By a Notice of Decision dated 4 March 2015 and a Notice of Further Decision dated 8 December 2016, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

11.  The applicant appealed the Director’s decision to Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 14 March 2017 and by its decision dated 26 May 2017, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [24] to [29], the Board found that the applicant had not made out his case.  On the applicant’s account, he was not injured in the alleged incidents and if he had genuine fear for his life, he would have reported the incidents to the police but he did not.  The riots were localized incidents as the Ravidassia religion only had followers in parts of Punjab.  Thus, it was not necessary for the applicant to come to Hong Kong to seek non-refoulement protection.  Further, it was only the applicant’s speculation that he would be harmed or killed by the Sikhs because of his inter-religious marriage.  Relevant country of origin information (“COI”) suggests there is reasonable state protection for religious freedom and mixed marriages in India [32] – [35].  For the aforesaid reasons, the applicant’s claim was rejected on all applicable grounds.

Application for leave to start judicial review

12.  On 28 June 2017, the applicant filed a Form No.86 to apply for leave to judicially review the Board’s decision on the following grounds:

(1)  The Board had unlawfully fettered his discretion by dismissing his appeal.

(2)  The Adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(3)  The Board’s decision was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness.

(4)  The Board failed to meet the standard of greater care and duty owed to a self-represented claimant.

(5)  The hearing bundle was not provided to him earlier and with interpretation and the applicant was confused at the Board’s hearing.

(6)  The applicant had answered the question honestly but the Board found him an incredible witness.  The hearing was conducted unfairly because the Board had failed to make appropriate arrangement in relation to the hearing bundle.

(7)  The Board had relied on sources of news that was not officially recognized or was simply hearsay.

The JR Decision

13.  An oral hearing was fixed for 19 September 2017.  Despite a Notice of Hearing having been sent to the applicant at his last reported address, he failed to attend the hearing.  In the CALL-1 form, M Poon J stated that following consideration of the papers and the applicant being absent, she refused leave for judicial review.

Application for extension of time to appeal the JR Decision

14.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 24 August 2021 for an extension of time to appeal.  That was dismissed by DHCJ Suffiad on 3 November 2021.  Hence, the Summons to this court. 

Discussion

15.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

16.  As for (1), the applicant was late by 3 years and 10 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was inordinate.   

17.  As for (2), the reasons for the delay, the only explanation given by the applicant in his supporting affirmation was that he did not receive the letter from the Court.  However, the court file showed that the order of the Court was sent to the applicant on 19 September 2017 at his last reported address and it was not returned through the post.  In the absence of any further details or documentary evidence to corroborate his bare assertions, no good reason has been made out for the applicant’s inordinate delay.

18.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  He only mentioned in his summons that he wanted to challenge the decision of the Court.  While M Poon J did not give reasons for the decision to refuse leave, DHCJ Suffiad had reviewed the Board’s decision and the merits of the applicant’s case carefully when considering his application for an extension of time to appeal against the JR Decision.  After due consideration of the Board’s decision, DHCJ Suffiad did not find any prospect of success in the applicant’s intended appeal for the reasons set out at [13] to [18]:

“13. The Board had considered the Applicant’s case under all 4 limbs, carefully and separately, namely, torture claim under Part VIIC of the Ordinance, BOR 2 risk; BOR 3 risk and persecution risk under Article 33 of the 1951 Convention relating to the Status of Refugees.

14. The Board made the finding based on the Country of Origin Information (COI) that state protection was available to the Applicant in India and that religious freedom and inter religious marriages are also protected. Thus the Applicant should have no problem returning to India with his Christian wife.

15. On the factual findings made by the Board, the Board took the view that the Applicant failed to establish any case for torture risk, BOR 2 risk, BOR 3 risk or persecution risk.

16. The Board also found that Internal Relocation was available to the Applicant outside of Punjab.

17. Such findings by the Board are well within the province of the Board to make and it is not for this Court to usurp that function of the Board.

18. There does not appear to me to be any errors of law, procedural unfairness or irrationality in the decision by the Board.”

19.  In the Summons and supporting affirmation filed in this Court, the applicant only stated that he wants to challenge the JR Decision.  In his written submissions, he said that his life is in danger in his home country and he wants to stay in Hong Kong with his family.      

20.  Upon our careful review of the Board’s decision, we are satisfied that the Board had duly considered the applicant’s case and the relevant COI and came to the right conclusion that the applicant had failed to establish his claim on all applicable grounds.  The Board did not challenge the applicant’s credibility and on his own account of event, he did not suffer any injury over the incidents of attack.  The Board further found that the religious riot was a localized incident and it is not necessary for the applicant to leave his country to Hong Kong.  His fear that he and his family would be harmed due to his inter-religious marriage remains his bare assertions and own speculation.  

21.  Assessment of evidence, risk and COI is within the province of the Board.  It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  As with DHCJ Suffiad, we do not see any in this case.  

22.  After our careful review of the available evidence and material, we find no merit in the applicant’s case for leave to apply for judicial review. 

23.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 11 November 2021.