RE TARSEM SINGH

CAMP 191/2020

[2022] HKCA 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 191 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 527 OF 2017)

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J U D G M E N T

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

1.  On 15 March 2019, DHCJ Bruno Chan (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claim (“the JR Decision”). 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. The deadline was therefore 29 March 2019.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 12 May 2020 for extension of time to appeal (which was late by more than 13 months).  That summons was dismissed by the Judge on 7 October 2020. 

3.  On 12 October 2020, the applicant filed his summons in CAMP 191/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  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.  In compliance with the directions made by the Registrar of Civil Appeals on 28 December 2020, the applicant filed his written submissions on 11 January 2021.

Background

5.  The brief background is as follows.  The applicant is an Indian national.  The applicant started to have a land dispute with his uncle Sukhdev (“the Uncle”) and 2 cousins Rana and Kinder (“the Cousins”) in June 2014 when his cousins tried to expand their farmland adjacent to the applicant’s farmland (“the Farmland”), by forcibly moving the boundary line to encroach upon the Farmland, which led to a heated argument between the parties.  The applicant complained about the matter to the village council and the boundary was restored. Nothing eventful happened until around August 2014 when the Cousins extended the boundary again to encroach upon the Farmland, and assaulted the applicant with wooden sticks and threatened to kill him.  The applicant’s father reported the attack to the police, but the police asked for a bribe.  The applicant fled to stay with his parents-in-law and returned home after one month.  After that, the applicant claimed that two men kept following him.  The applicant further claimed that the Uncle was connected to a political party and one of the Cousins was a drug dealer and gangster.

6.  Worried for his safety, the applicant fled India arriving in Hong Kong on 1 January 2015.  He was permitted to stay until 8 January 2015. He overstayed and was arrested by the police on 20 January 2015.  He was then transferred to Castle Peak Immigration Centre for investigation.  On 21 January 2015, he raised his non-refoulement claim on the basis that if he were to return to India, he would be harmed or even killed by the Uncle and Cousins over the land dispute.

7.  By a Notice of Decision dated 14 June 2016 and Notice of Further Decision dated 27 February 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 19 July 2017, and by its decision dated 24 July 2017, the Board dismissed the appeal and confirmed the Director’s decision.  The Board, after due consideration of the applicant’s evidence[5], had serious doubts over the applicant’s claim of threats from the Uncle and the Cousins[6]. It found that even on the applicant’s own evidence, the assault and threats did not attain the required level of severity, and the applicant’s fear of being framed with dangerous drugs by his Cousins was without basis and fanciful.[7]  The Board gave no weight to the applicant’s allegation that the police had requested a bribe as it was a bare allegation without any evidential support.[8] Further, internal relocation is a reasonable option.[9]   For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.   

Application for leave to start judicial review

9.  On 18 August 2017, the applicant filed a Form No. 86 to apply for leave to judicially review the decisions of the Director and the Board. Save for saying that his life is in grave danger, he did not provide any ground for seeking relief in his Form 86 or supporting affirmation.

The JR Decision

10.  The applicant did not request an oral hearing and the application was disposed of on paper.  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 leave to apply for judicial review for reasons set out in [13] - [14] of the JR Decision:

“13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their roles as primary decision makers.  In the absence of any legal error identified by the applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.     

14.     As already noted the applicant in the present case has not put forward any ground in support of his application, nor has he identified any legal errors in either of the decisions of the Director and the Board.  Nevertheless, having proceeded to consider those decisions 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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 12 May 2020 for extension of time to appeal.  That was dismissed by the Judge on 7 October 2020.  Hence, the summons to this court. 

Discussion

12.  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 that an extension will be granted).  As for (1), the applicant was late by more than 13 months between the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial and significant. 

13.  As for (2), the reasons for the delay, the applicant alleged in his summons and supporting affirmation that he did not receive any letter from the court about the JR Decision until he was informed by the immigration officer, and by then he was already out of time with his appeal.  The Court file showed that the JR Decision was sent to his last reported address and it was not returned as undelivered post.  The Judge was rightly not satisfied with the alleged reason for the delay.

14.  In the summons and supporting affirmation filed in this Court, the applicant only requested us to accept his late application and gave a general excuse that he was late due to “lack of knowledge and insufficient sources”.  We see no satisfactory explanation for the substantial delay at all.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant failed to provide any ground of review in his Form 86 and his supporting affirmation, and the Judge found no realistic prospect of success in the intended appeal and thus had rightly refused leave. 

16.  In the written submissions, the applicant merely said that it was dangerous for him to return to his home country and requested this Court to let him stay in Hong Kong until his problem is solved.

17.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

18.  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 12 October 2020.