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CAMP 270/2021
[2021] HKCA 1617
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 270 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO. 927 OF 2018)
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BETWEEN
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GAGANJEET SINGH |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
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Before: Hon G Lam and Chow JJA in Court
Date of Written Submission: 5 August 2021
Date of Judgment: 8 November 2021
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. By summons dated 22 July 2021, the Applicant applied to this Court for an extension of time to appeal against the order of Deputy High Court Judge C.P. Pang (“the Judge”) dated 8 October 2020 refusing to grant leave to apply for judicial review.
2. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.
BACKGROUND
3. The Applicant is a national of India. He arrived in Hong Kong in May 2012, overstayed, and on 18 February 2016, surrendered to the Immigration Department. He lodged a non-refoulement claim on 23 August 2016. Details of the Applicant’s claim have been summarised by the Judge at §3 of the CALL-1 Form. In essence, the Applicant’s claim is based on an alleged fear that if he returned to India, he would be harmed or killed by a neighbour called Raj Khurana with whom the Applicant had a land dispute in India.
4. By a Notice of Decision dated 30 December 2016, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk,[3] and persecution risk[4] (“the Director’s Decision”).
5. In due course, the Applicant appealed the Director’s Decision to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”). He appeared before the Board on 9 March 2018. On 30 April 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).
6. On 24 May 2018, the Applicant filed a Form 86 applying for leave to apply for judicial review of the Board’s Decision. On 8 October 2020, the Judge refused to grant leave to the Applicant to apply for judicial review (see Form CALL-1 at §21). The Judge’s reasons for his decision are as follows:
“[14] In the present case, the Board accepted the asserted facts most favourable to the applicant. It only disagreed with him on the assessment of risk flowing from the incidents alleged. Further and in any event, it found that any risk of harm could be eliminated by internal relocation which was reasonable option for him.
[15] As explained above assessment of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.
[16] The complaints raised by the applicant in his Form 86 and affirmation are general and vague assertions. I do not find any reasonably arguable basis to challenge the finding of the Board.
[17] The Board was fair in the assessment of credibility. The applicant’s conduct in Hong Kong by his delay in lodging the claim (4 years after his arrival in Hong Kong) for protection could have been viewed adversely on his credibility and was inconsistent with someone in genuine fear for his life and safety.
[18] Even on his own account, the alleged past ill-treatment was of low intensity and frequency which did not reach the level of severity required by law to constitute torture or CIDTP. Khurana has died. There is no substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.
[19] There cannot be any criticism of the Board’s determination which is eminently reasonable.
[20] Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.”
THE JUDGE’S EXTENSION DECISION
7. Under Order 53, Rule 3(4) of the RHC, the Applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. No notice of appeal was filed against the Judge’s order of 8 October 2020 within the 14-day period. On 11 December 2020, the Applicant filed a summons seeking extension of time to appeal.
8. The Judge considered that the Applicant’s delay of 1.5 months was not a short one. The Applicant’s explanation for the delay was that he had moved to a new address and therefore did not receive the Judge’s decision until he was told by an immigration officer of the same. The Judge considered that it was the duty of a litigant to give the court an address to which correspondence or notice could come to his attention in a timely manner, and update the address (when there was a change). The Judge found the Applicant’s delay to be not excusable (see [2021] HKCFI 847 at §§6-7). The Judge also considered the merits of the Applicant’s intended appeal and found that the Applicant did not put forward any viable ground of appeal, and could not see any prospect of success in the intended appeal (§§9-10).
9. Accordingly, on 8 April 2021, the Judge refused to extend time for the Applicant to appeal, and dismissed his summons of 11 December 2020.
THIS APPLICATION
10. By summons dated 22 July 2021, the Applicant applied to this court for an extension of time to appeal the Judge’s order of 8 October 2020. In his supporting affirmation also of 22 July 2021, the Applicant contended that the Judge’s decision was reached unfairly without giving him an opportunity to clarify his case and situation in his home country, and thus he would like to appeal out of time.
11. In his written submissions dated 5 August 2021, the Applicant makes generic submissions on general principles of law relating to non-refoulement claims. He also claims that the Board did not act in a procedurally fair manner in dealing with his application and failed to assess his credibility correctly.
DISCUSSION
12. In considering whether to extend time for appeal, the court will take into account the length of the delay, the reasons for the delay, the merits of the intended appeal, and the degree of prejudice to the other party if an extension of time is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success in the intended appeal, not merely a reasonable prospect of success: see Tang Chai On v Tang Sing Ki (supra) at §9.
13. The prospect of success of the intended appeal is important: the court will not extend time for a hopeless appeal to be pursued, see Re Adumekwe Rowland Ejike [2019] HKCA 702 at §19.
14. The court’s approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.
15. We consider the Applicant’s delay of 1.5 months in lodging the intended appeal to be substantial and we agree with the Judge that the Applicant’s delay is not excusable.
16. The Applicant has not pointed to any specific errors in the Judge’s decision dated 8 October 2020, or raised any viable grounds of appeal against the Judge’s decision in his summons, supporting affirmation, or written submissions. A general assertion that the Judge reached his decision unfairly is not a valid ground of appeal.
17. In respect of the Applicant’s complaint that the Judge did not give him an opportunity to clarify his case and situation in his home country, as recorded in paragraph 10 of the Judge’s decision of 8 October 2020:
“By a letter dated 12 June 2020, the court invited the applicant to submit any submissions that he would like to make and indicate whether he would like to have an oral hearing. Since then, the applicant has not made any response or submission to the court. The applicant did not request an oral hearing. The application is therefore considered on the papers.”
Thus, this complaint is plainly without substance.
18. The Applicant’s intended appeal has no merits, or reasonable prospect of success.
DISPOSITION
19. Accordingly, the Applicant’s application for extension of time to appeal is refused, and the Applicant’s summons of 22 July 2021 is dismissed.
| (Godfrey Lam) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The Applicant, unrepresented, acted in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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