RE SATNAM SINGH

CAMP 132/2019

[2020] HKCA 410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 132 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1063 OF 2018)

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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 25 February 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 406, Deputy High Court Judge K.W. Lung (“the Deputy 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 Claim Petition Office (“the Board”) dated 6 June 2018 (“the Board’s Decision) and the decision of the Director of Immigration (“the Director”) dated 28 November 2017 (“the Director’s Decision”).

3.  The applicant issued a summons on 14 March 2019 before the Deputy Judge seeking leave to appeal the Deputy Judge’s Decision out of time.  Pursuant to Order 53 rule 3(4) of the Rules of High Court, the 14‑day period for him to lodge such appeal expired on 11 March 2019.  Thus, the application was 3 days out of time.  On 6 June 2019, the Deputy Judge refused his application to appeal out of time.

4.  The applicant now renews the application for extension of time to this Court by way of a summons dated 17 June 2019 (“the Summons”). 

5.  Pursuant to the directions of the Registrar of Civil Appeal given on 19 June 2019, the applicant lodged his written submissions on 5 July 2019.  However, the said written submissions exceeded the length requirement as directed.  The Registrar further directed that the court would not consider the said written submissions and the applicant should re-lodge his written submissions.  However, the applicant failed to do so. 

6.  Having considered the applicant’s 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 (Cap 4A).  This is our judgment.

Background

7.  The applicant is a national of India.  He first came to Hong Kong on 13 October 2015 as a visitor but overstayed.  He surrendered himself to the Immigration Department on 28 October 2015 and lodged a non-refoulement claim on 9 May 2016.

8.  The details of the applicant’s claim and his personal background were set out in paragraph 13 of the Director’s Decision, and paragraphs 25-32 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that if he were to return to India, he would be harmed or killed by his uncle Gulzar Singh (“Gulzar”) because of a land dispute.  The applicant claimed that after the death of his grandfather, his father inherited a farm land.  His uncle Gulzar subsequently demanded shares of the farmland but his father refused.  According to the applicant, Gulzar was affiliated with the Bharatiya Janata Party (“BJP”), an alliance of the People’s Democratic Party (“PDP”) which was the ruling party in their village.  In around 2015, Gulzar and his associates came to the farmland and attacked the applicant, whose left arm and finger were cut off.  The applicant reported the incident to the police.  However, Gulzar came to the applicant and demanded a withdrawal of the police complaint.  The day after, Gulzar again came to the applicant’s house, threatening to kill him if he refused to withdraw the police complaint.  Out of fear, his family complied.  Since then, Gulzar and others had been patrolling over the farmland with wood sticks and treated the applicant as a target.  As a result, he came to Hong Kong for protection. 

THE DIRECTOR’S DECISION AND THE BOARD’S DECISION

10.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], the torture risk^[3] and BOR 2 risk^[4]. 

11.  The applicant appealed the Director’s Decision to the Board.  After the hearing on 14 May 2018, the Board dismissed the appeal. The Board found that the applicant provided inconsistent and changing versions in relation to the basis of his claim, concerning the land dispute and the attack in 2015.  He had however failed to provide reasonable explanations for the inconsistency.  The Board also found his version of Gulzar’s political affiliation vague and generalized.  As a result, the Board found that the applicant’s claim was not credible.  On this basis alone, the Board dismissed the appeal (paragraphs 33-59 of the Board’s Decision).

THE DEPUTY JUDGE’S DECISION

12.  On 11 June 2018, the applicant filed his Form 86 for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The hearing was fixed to be heard on 30 November 2018 but the applicant did not appear.  The Deputy Judge dismissed his leave application for want of prosecution on 30 November 2018.  Subsequently on 5 December 2018, the applicant took out a summons seeking leave to appeal the dismissal.  The Deputy Judge accepted his explanation that he did not receive the notice of hearing and set aside the dismissal for want of prosecution.  He proceeded to consider the applicant’s intended grounds of review, which were summarized at [18] of the Deputy Judge’s Decision:

“18. In his affirmation in support of his application filed on 11 June 2018, the applicant relied upon those grounds attached to Form 86 summarized below:

(1) the Director failed to maintain high standard of fairness and his conduct was Wednesbury unreasonable;

(2) the Director had failed to consider the issue of state acquiescence;

(3) the Director had not considered collusion between the police and the high ups of political circles and the misconduct of the police officials;

(4) the Director failed to give sufficient weight to the Country of Origin Information (“COI”) which supported the applicant’s case;

(5) the Director elected to adopt COI which suited his pre-conceived conclusion, which is unfair to the applicant;

(6) the Director failed to appreciate corruption and incompetency of the administration in the applicant’s country;

(7) the Adjudicator failed to make sufficient enquiry before making the determination;

(8) the Adjudicator was wrong to demand evidence from the applicant because the applicant was being kept in the detention centre; and

(9) the Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to support the claim.”

13.  The Deputy Judge heard the applicant on 2 January 2019 and dismissed the application for reasons set out at [19]-[28] of the Deputy Judge’s Decision:

“DISCUSSION

The Director’s Decision

19. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

20. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

21. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

22. It is obvious that the applicant’s claim is facts sensitive. The Board had rejected all of his evidence in relation to the facts of the case. There is simply no factual basis in support of his claim.

23. Facts are to be found by the Director or the Board. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§13 and 14:

‘13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

24. Grounds (1) to (7) are either the applicant’s opinion without any evidence to support or they are the facts to be found by the Director or the Board. They fail.

25. As to ground (8), the Adjudicator was entitled to ask for evidence from the applicant as he has the burden of proof. He had not asked for indulgence or assistance from the Adjudicator. This ground fails.

26. As to ground (9), the applicant was unable to identify the relevant evidence in support of his claim that he intended to adduce to the Board. This ground fails too.

27. I find that the applicant is unable to show that he has reasonable chance of success in his intended judicial review.

CONCLUSION

28. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”

EXTENSION OF TIME IN THE COURT BELOW

14.  On 14 March 2019, the applicant took out summons before the Deputy Judge seeking leave for extension of time to appeal the Deputy Judge’s Decision. 

15.  By the decision dated 6 June 2019 [2019] HKCFI 1439, the Deputy Judge accepted that the length of delay was a short one but the applicant was unable to identify any errors in the Deputy Judge’s Decision. Thus, the Deputy Judge dismissed the summons on the basis that the intended appeal had no reasonable prospect of success. 

DISCUSSION

16.  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 (1) the length of delay, (2) the explanation of the delay, (3) the merits of the intended appeal, and (4) the prejudice to the respondent is time to appeal is extended:  Re MA [2019] HKCA 1020, at [14]-[15].

17.  In our view, there is no reason for us to extend time for the applicant to appeal against the Deputy Judge’s Decision.

18.  First, although a 3-day delay is relatively short, the applicant has not provided any explanation for the delay.  

19.  Second, and more importantly, the intended appeal has no prospect of success at all.

20.  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.

21.  It is trite that an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.  It is thus incumbent on the applicant to identify with specifics and particularities in an appeal the errors of the judgment sought to be appealed from. 

22.  In the Summons, the applicant only repeated that his life was in danger.  He did not provide any grounds in the supporting affirmation filed on the same date.  Significantly, he did not identify any error in the Deputy Judge’s Decision.  In the circumstances, this is not a viable ground to challenge the Deputy Judge’s Decision.

23.  In the premises, it will not serve any useful purposes to extend time for the applicant to appeal as the intended appeal is clearly without merits.  We will therefore refuse the application and dismiss the Summons.

24.  We further make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court, that no party may request this determination be reconsidered at an oral hearing inter partes.