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

CAMP 64/2022

[2022] HKCA 1103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 64 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1895 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 16 December 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 28 January 2022, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as there is no realistic prospect of success in the intended appeal[2].

3.  On 21 February 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4.  The applicant is a national of India. He is 33 years old. He entered Hong Kong illegally on 12 December 2015 and was arrested by the police on the following day. He lodged his non-refoulement claim on 15 December 2015 on the basis that he will be ill-treated or killed by his creditor and his men if he returns to India.

5.  By a Notice of Decision dated 30 April 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 26 July 2018. The Board held that the applicant did not have a well-founded fear of being persecuted for any of the Convention reasons as his problems with his creditor arose out of a private loan and land dispute and the creditor is not a state actor. The Board further considered that the alleged ill-treatment was insufficient to constitute torture. Besides, the Board found there is no real chance that the creditor would kill the applicant as the applicant’s father is still alive and farming on the subject farmland. In addition, although the Board accepted the applicant’s assertions regarding the failure on the part of the police at the Fatehgarh police station, the Board considered this is not sufficient to show that the police of the state of Punjab or in India was unable or unwilling to provide reasonable and effective protection to the applicant, nor is it sufficient to show acquiescence. The Board also held that internal relocation in India is a reasonable and practicable option for the applicant. Thus, the Board decided that the applicant failed to establish his non-refoulement claim on any of the applicable grounds and dismissed the appeal on 23 August 2018.

The judge’s decision

7.  On 10 September 2018, the applicant filed a Form 86 and supporting affirmation to apply for leave to bring judicial review against the decision concerning his non-refoulement claim. The applicant only stated that the decision is unfair and unreasonable in his supporting affirmation, without stating any specific grounds for his intended challenge.

8.  DHCJ K W Lung directed the Form 86 be amended to the effect that the Board is the proposed respondent and the Director is the interested party. The judge considered the leave application on paper as the applicant did not request for an oral hearing. He held that there is no evidence to show that the Board erred in the finding of facts or the application of laws in the applicant’s case. He concluded that the applicant failed to show that any reasonable prospect of success in the intended judicial review and dismissed the leave application on 16 December 2021.

Grounds of appeal

9.  The applicant stated in his written submissions he found many errors that the court did not find and requested the Court of Appeal to check his points and grant him leave.

Analysis and disposition

10.  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.

11.  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 judge’s order was made on 16 December 2021. The applicant took out his summons in the court below on 6 January 2022. He was late for one week. He explained that he was late because he did not receive the High Court judgment.

12.  The decision of DHCJ K W Lung was sent by post on 16 December 2021 to the applicant’s address as stated in his notice of change of address filed on 12 November 2019[7]. It is noted that the respective addresses stated in his application for extension of time filed with the court below on 6 January 2022[8] and in his present application filed on 21 February 2022[9] are different from the one stated in his notice of change of address. However, he has not filed a new notice of change of address informing the court of his new address. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Under these circumstances, the applicant’s delay is not justifiable. Therefore, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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. If no viable ground is put forward to reverse the decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  The applicant’s grounds and submissions in the present application are just bare assertions without particulars or evidence in support. In particular, he submitted that he has found errors but without identifying what they are and did not give further elaboration. He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  For the above reasons, there is no prospect of success, let alone real prospect of success, in the applicant’s intended appeal. We refuse to exercise our discretion to extend time to appeal against the judgment of 16 December 2021 and dismiss the renewed application for extension of time filed on 21 February 2022.