RE TARJINDER SINGH

CAMP 106/2019

[2020] HKCA 494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 106 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 640 OF 2017)

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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):

Introduction

1.  By a decision as set out in Form CALL-1 dated 2 March 2018 (“the Judge’s Decision”) [2018] HKCFI 417, Madam Justice Campbell-Moffat (“the Judge”) refused to grant leave to the applicant to apply for judicial review.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 26 July 2017 (“the Board’s Decision) dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 5 January 2016 (“the Director’s First Decision”) and 3 February 2017 (“the Director’s Second Decision”).

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  The applicant issued a summons on 5 September 2018 before the Judge seeking leave to appeal the Judge’s Decision out of time.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the 14-day period for him to lodge such appeal expired on 16 March 2018.  Thus, the application was about six months out of time.  On 14 December 2018, the Judge refused his application to appeal out of time (“the Judge’s Leave Decision”) [2018] HKCFI 2779.

5.  The applicant now renews the application for extension of time to appeal the Judge’s Decision to this Court by way of a summons dated 30 May 2019 (“the Summons”).  However, pursuant to Order 59, rule 2B(3) of the Rules of the High Court, he ought to issue the Summons within 14 days from the date of the Judge’s Leave Decision, the deadline of which expired on 28 December 2018.  He was thus around six months out of time.

6.  Pursuant to the directions of the Registrar of Civil Appeal given on 31 May 2019, the applicant should lodge his written submissions on 18 June 2019, which was later extended to 16 July 2019.  But he still failed to do so.

7.  Having considered the Summons, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court.  This is our judgment.

Background

8.  The applicant is a national of India.  He was born in Hong Kong on 16 January 1983 and acquired unconditional right to remain in Hong Kong.  He was then taken back to India in 1994.  On 29 April 2012, he returned to Hong Kong and was permitted to remain as a visitor until 13 May 2012.  He did not leave Hong Kong and lodged a refugee application with the United Nations High Commissioner for Refugees (“UNHCR”) in May 2012.  His refugee claim was refused in late 2012.  On 26 September 2012, he was arrested by the Hong Kong police for criminal offences and sentenced to 4-months imprisonment.  On 27 March 2013, a deportation order was issued against him.  On 19 January 2013, 9 April 2013 and 15 April 2013 respectively, he lodged his non-refoulement claim.

9.  The details of the applicant’s claim and his personal background were set out in paragraphs 7 - 8 of the Director’s First Decision, and paragraphs 40 - 62 of the Board’s Decision.

10.  Briefly stated, the applicant claimed that if he was to return to India, he would be harmed or killed by Kuldeep, Sukhdev and Jaspal, who had disputes with the applicant’s family over the land.  The applicant inherited some lands in his village from his father.  In around 1997 - 1998, his family had a land dispute (in relation to about half acre of the land) with Kuldeep, who allegedly associated with local terrorist group and Indian Congress Party.  In 2000, the applicant’s family let the lands to two tenants, Sukhdev and Ranjit.  Sukhdev was influential.  On one occasion, the applicant saw Sukhdev chopped off one man’s arm due to a land dispute.  In around 2011, the applicant wished to take some lands back to farm.  However, Sukhdev refused to return the lands.  In September/October 2011, the applicant’s house was broken into and vandalised while he was away from home.  He was informed that it was done by Sukhdev.  In around the end of 2011, the applicant was attacked by two masked men on his way home and in around February 2012, he was also framed by Sukhdev for drug trafficking.  His mother arranged money to get him out and thereafter he fled to Hong Kong on 29 April 2012.

The Director’s Decisions and The Board’s Decision

11.  By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]. The Director’s Second Decision assessed the BOR 2 risk[4].

12.  The applicant appealed the Director’s Decisions to the Board.  After a hearing on 5 May 2017, the Board dismissed the appeal.  The Board found that the applicant was not a credible witness and his evidence was contradictory and fabricated for the purpose of his claim.  Although it accepted that there might be disputes over the lands, the Board found that the applicant failed to give satisfactory evidence in relation to certain crucial aspects of his claim, such as how Sukhdev would utilized his connections to harm or kill the applicant.  His allegation that Sukhdev was involved in the incidents was merely hearsay. Further, the lands, as stated by the applicant, were given back to his family. His mother and other relatives were not harmed despite they were all co-owners of the lands.  As a result, the Board found that the applicant failed to establish a non-refoulement case on the basis of credibility alone (paragraphs 68 - 81 of the Board’s Decision).  In any event, internal relocation was available to the applicant (paragraphs 82 - 84 of the Board’s Decision).

The Judge’s Decision

13.  On 19 September 2017, the applicant filed his Form 86 for leave to apply for judicial review against the Board’s Decision.  He did not request an oral hearing.  In his supporting affirmation, the applicant advanced several grounds which were summarized by the Judge at paragraphs 16 - 17 of the Judge’s Decision:

“16.  It is not entirely clear whether his grounds of review are in respect of the Director or the Adjudicator or both and therefore I will proceed on the basis that it is against the Decisions of both.

17.  In his affidavit in support of his application for leave, the Applicant submits:

(i)  There were no reasonable grounds for rejecting his claim.

(ii)  There was a failure to consider the extended form of state acquiescence.

(iii)  There was a failure to fully consider the COI reports in assessing risk to the Applicant.

(iv)  There was an irregularity in that the decision maker was not the person who interviewed the Applicant.

(v)  There was no proper basis for the consideration of internal relocation.”

14.  After considering all the evidence, the Judge dismissed his leave application with reasons set out at paragraphs 18 - 25 of the Judge’s Decision:

“18.   There were no supporting submissions in respect of these specific allegations. The supporting information was a synopsis of current case law. I therefore considered the grounds advanced as they stand.

19.  In respect of (i) above, both the Director and the Adjudicator analysed the Applicant’s claim on all applicable grounds having heard the Applicant and provided him with an opportunity to state his case. In coming to their determination, they took into account admissible documentary evidence, provided him with a degree of latitude in the submission of his own documents and gave him an opportunity to make representation and address their concerns. There was nothing procedurally incorrect. They explained in detail why they rejected his claim under each and every head. There was nothing unreasonable in that explanation.

20.  In respect of (ii) above, the Director and the Adjudicator considered the purported involvement of the state and its agents based upon the particular facts of this case which involved an allegation against the police and against a private individual said to be a Member of the Legislative Assembly. They gave reasons for rejecting the Applicant’s claim on this basis and they properly referred to COI materials in respect of that determination giving credit where due to the criticism of the Applicant in respect of the trust reposed in local police forces but noting the improvements which have been and continue to be made in reducing police corruption.

21.  In respect of (iii) above, there is no merit on this ground. Both the Director and the Adjudicator referred to appropriate up-to-date COI materials.

22.  In respect of (iv) above, this is factually incorrect. The Director properly delegates the task of assessing a claim but the person who carries out the interview and makes the determination to be relied upon is one and the same person on behalf of the Director.

23.  In respect of (v) above, there was no evidence whatsoever that the Applicant would come to any harm elsewhere in India. He is a capable and well-educated man who should be able to find suitable employment wherever he chose to live. He had previously lived elsewhere in India without incident.

Conclusion

24.  I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The Director and the Adjudicator considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately and in depth. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

25.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”

Extension of time in the court below

15.  On 5 September 2018, the applicant took out a summons before the Judge seeking leave to appeal against the Judge’s Decision out of time.  The applicant did not attend the hearing and the Judge considered the application on paper.  By way of the Judge’s Leave Decision, the Judge refused to grant extension of time to the applicant.

16.  The Judge refused to accept the applicant’s explanation of not receiving the Judge’s Decision.  The order and the Judge’s Decision were sent to the same address the applicant had been using.  Further, the applicant had been in Hong Kong since 2012 and he ought to be familiar with the interactions with various governmental authorities.  Thus, his explanation was unacceptable.  In any event, the applicant also failed to provide any intended grounds of appeal or put forward any particulars pointing out any legal errors or procedural unfairness in the Judge’s Decision.  In the absence of any reasonably arguable ground, the Judge held that the application was totally without merit and dismissed his application.

Discussion

17.  By way of the Summons, the applicant renewed his application to this court.  In his supporting affirmation, he merely stated that he was currently “in the custody of Director of Immigration” and had no access to his documents and legal advice.  He did not put forward any intended grounds of appeal.

18.  This court has a discretion to extend time to appeal out of time.  The court however will only consider whether to do so after taking into matters such as (a) the length of delay, (b) the explanation of the delay, (c) the merits of the intended appeal, and (d) the prejudice to the respondent is time to appeal is extended.  See: Re MA [2019] HKCA 1020 at [14] - [15].

19.  In our view, this application is without merits.

20.  First, a delay of more than six months is substantial and significant in the context of an only 14-day statutory appeal period as provided by the rules.

21.  Second, the Judge contended that the delay was inexcusable and that the applicant did not explain the delay in filing the Summons.  The applicant in his supporting affirmation dated 30 May 2019 stated that he was in custody of the Immigration Department and thus he was unable to obtain his identity document or legal advice. However, this is plainly not a justification for his delay of six months in challenging the Judge’s Decision which was dated in March 2018.  We agree with the Judge that the delay was inexcusable.

22.  Third, there is plainly no merit in the intended appeal.

23.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The following is pertinent in considering the present appeal.

24.  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 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.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court.

25.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in the Judge’s Decision or the Judge’s Leave Decision.

26.  As mentioned, the applicant did not put forward any intended grounds of appeal.  Thus, there is simply no viable ground for this Court to intervene the analysis of the Judge.

27.  For these reasons, we will refuse to extend time for the applicant to appeal, and dismiss the Summons accordingly.