RE MALKIT SINGH

HCAL 338/2017

[2021] HKCFI 3203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 338 OF 2017  

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D E C I S I O N

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1.  The Applicant, by summons dated 24 August 2021, applies for extension of time to appeal against the order of High Court Judge M. Poon (as she then was) (“the Court”) made on 19 September 2017 refusing to grant leave to the Applicant for judicial review of the decision of the Torture Claims Appeal Board in dismissing his appeal from the decision of the Director of Immigration regarding his non-refoulement claim.

2.  The 14 day period for the Applicant to file his appeal against the order of the Court ended on 3 October 2017 and hence he was well over 3 years and 10 months late with his intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing to grant leave to apply for judicial review,  a court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time was granted.

4.  In the Applicant’s case, a delay of well over 3 years and 10 months can be said to be inordinate. The only explanation given by the Applicant for such an inordinate delay in his affirmation in support was that he did not receive the letter from the High Court.

5.  The court record shows that the order of the Court was sent on the same day it was made to the last reported address of the Applicant and there is nothing to show that it was returned as undelivered post.

6.  As for the prospect of the intended appeal, the Applicant has not put forward any proper or valid draft or proposed grounds of appeal. All that the Applicant has said in his summons was that he wanted to challenge the decision of the Court.

7.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

8.  This being an application to extend time to appeal against the decision of the Court, it is incumbent on the Applicant to show that there is a reasonably arguable appeal. This he has not done.

9.  The one matter which had initially troubled me in coming to a decision on this summons to extend time was the fact the Court simply made the order refusing leave to the Applicant upon the Applicant’s failure to appear at the hearing for leave. There does not appear to be any reason given by the Court or that the Court had even considered the merits of the Applicant’s case in respect of the decision by the Board. The Court of Appeal had held that there ought to be an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand. (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]). Often, when the Applicant chose not to have an oral hearing, this exercise would be done by the Court on paper, but such an enhanced scrutiny of the decision by the Board is still carried out.

10.  In the present case, the next best thing that I can do is to carry out such an exercise and look into the decision of the Board in coming to a decision on whether or not to extend time for appeal by the Applicant.

11.  In a nutshell, the Applicant’s case is that he is an Indian national and a Sikh. In 1995 he started his own transportation business in Punjab. The nature of his business required him to make contact with people from all walks of life with different religious background. From 1995 to 2008, there was growing tension between the Ravidassia (a breakaway Sikh sect) and the Sikhs and some people would question and threaten the Applicant for maintaining contact with people of other religions but he was reluctant to give up those contacts due to his business. On one occasion he was attacked by some 5 or 6 turbanned Sikhs but those in his car intervened and he was not assaulted. In 2008 while he was driving some college students, some unknown male with sticks attacked his vehicle. The Applicant escaped with only the rear window of his car damaged. In 2009, during a riot, he was driving 3 passengers when his vehicle was attacked. Large pieces of stones were thrown at his vehicle but he managed to drive off without suffering injury.  The Applicant had never reported any of these incidents to the police.

12.  In June 2009 the Applicant came to Hong Kong and in May 2014 he married a Christian woman in Hong Kong. He further feared that if he had to return to India with his wife, he would be killed because of his inter-religious marriage.

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.  Given the lack of merits in this case, and when that is viewed against the inordinate delay and the fact that the Applicant has not put forward any valid grounds to say why the Court was wrong in refusing to grant leave to apply for judicial review, I am of the view that it would be futile to grant extension of time for what would appear to be a hopeless appeal. Therefore I decline to accede to this application for extension of time and see fit to dismiss the summons.