RE HARNEK SINGH AND OTHERS

HCAL 2824/2018

[2022] HKCFI 2744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2824 OF 2018

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D E C I S I O N

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Introduction

1.  This is the Applicants’ application by summons filed on 29 April 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 7 May 2021 (the “Order”) refusing them leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / non-Refoulement Claims Petition Office (the “Board”) dated 20 November 2018 (the “Decision”).

2.  In their Summons and supporting affirmation, the Applicants claimed that they did not receive the Order. The Court noted that the address given by them in their Summons is different from the address to which the Order was sent. Possibly, they did not receive the Order because they had moved without updating their new address with the Court.

3.  To assist them in presenting a proper case for extension of time, this Court gave them directions by letter dated 24 May 2022 to file a statement within 14 days of the letter setting their explanation for the delay in appealing; the date and circumstances when the Order was brought to their attention; the changes in their address and the grounds of their intended appeal. On 2 June 2022, the 2^nd Applicant replied on behalf of all the Applicants saying that they had applied for legal aid and requested the proceedings be stayed for 42 days. On 7 June 2002, the 2^nd Applicant lodged a statement as requested in the directions (the “Statement”). Subsequently, on 3 August 2022, the Court received notification from the Director of Legal Aid that their application for legal aid had been refused.

The Law

4.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing 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.

Length of delay and reasons for the delay

5.  By 29 April 2022 when the Summons was filed, more than eleven and half months had lapsed since the date of the Order. The application is more than eleven months out of time. The delay was substantial and inordinate in the context of a fourteen-day period for appeal.

6.  The explanation proffered by the Applicants is as follows. They had moved from the address stated in the Form 86 to their current address in 2020 without notifying the Court. However, they kept checking the correspondences sent to their old address as they had friends residing there. They disputed the Court’s finding in paragraph 5 of the Form Call-1 that they had refused to accept the Court’s letter inviting them to file submissions asserting that they did not receive any such correspondence at the old address.

7.  What led to the Court’s finding is that the Court invited the Applicants by letter dated 18 March 2021 to make submissions in respect of their leave application. The letter was returned on 26 April 2021 with a postal stamp dated 19 March 2021. This indicates that the letter was timely posted on 18 March 2021 and processed by the post office on 19 March 2021. The letter was returned with a stamp indicating the usual reason for the return. These reasons are:

(1)  Moved;

(2)  Not occupied;

(3)  No such person;

(4)  Refused;

(5)  Unclaimed; and

(6)  Incomplete address.

These are usual reasons for return of mails. They are quite exhaustive.

8.  The postman located the address. Reason (6) is not applicable. He did not leave a note requesting the addressees to claim the letter from the post office. Reason (5) is not applicable. He did not simply leave the letter in the letter box or by the door. He made some enquiries. He did not find the premises unoccupied, otherwise he would have ticked reason (2). If the Applicants had moved or that no such persons were known at that address, the postman would have been told and he would have ticked reason (1) or (3). He ticked reason (4). The circumstances suggest that the postman performed his duties in a responsible manner. He did not leave the letter in the letter box, by the door or at any convenient position in the premises. He made some enquiries. He must have been told by someone who claimed to be the addressees or their agent or person authorized to handle their affairs that the addressees did not want to accept the letter. The Court was certainly aware that this is hearsay evidence; but the surrounding circumstances are such as to make it very credible, particularly as the postman was in the course of performing his public duty.

9.  The Applicants’ case is that they had moved, they checked their mails at the former address with their friends who were still residing there, and they or their friends residing there had not received any such letter. That is not very credible. It is not their case that they instructed their friends to collect mails for them and inform them of their mails or deliver the mails to them. If the entire family had moved, why would they be checking for correspondence instead of updating the Court with their new address, particularly as they knew they had an important outstanding legal action. Even allowing for some neglects, why would they not inform the Court of their move for a whole year? Their explanation begs belief.

10.  The Applicants’ further case betrayed their credibility. In paragraph 8 of their statement, they said they sought an update from the High Court on 29 November 2021 with the help of Justice Centre Hong Kong and “did not receive a response to that letter”. Their assertion is vague. It is not clear what the “update” was, whether they came to the Registry to make oral enquiries or they made the enquiries by letter and whether it was the staff of Justice Centre who made the enquiries for them or who accompanied them to the Registry to make enquiries. But the Court has no record of such enquiries or “that letter”.

11.  More importantly, before their alleged “update” on 29 November 2021, the Court had sent two letters dated 7 May and 10 May enclosing the Form Call-1 and an updated Form Call-1 to their old address then known to the Court. These letters were not returned. This suggests that the Applicants may not have moved at all. In any event, if the Applicants had checked their mail at the old address, they should have notice of the two copies of Form Call-1. They were informed that their leave application had been dismissed, not just once, but twice. It makes no sense for them to seek “an update from the High Court on 29 November 2021”. They knew their leave application had been dismissed already. They were just sleeping on their right. There are three mails which they claim they had not received. When one coincidence is added onto another and onto yet another, the irresistible inference is that there are no coincidences but fabrication.

12.  The Applicants’ explanation went on. The Court understands that this is on the basis that they had not received the Form Call-1 and the Order. They said in late December 2021, they were notified that their uncle Gurmail Singh and the drug dealer Sukhwinder Singh who they feared had respectively passed away and moved to Canada. They felt it would be safe to return to India and indicated to the Immigration Department their intention to return. However, in late April 2022, they were informed by the 1^st Applicant’s father about renewed attacks. They then informed the Immigration Department and were advised to lodge an appeal. That explains why they took a few more months before appealing. The validity of this explanation stands on the basis that they had not received the Order and the two copies of Form Call-1, which this Court disbelieved. This Court rejects this as an explanation for the delay from late December 2021 to April 2022.

13.  Howsoever, one looks at their explanation, it is just not credible. There is no evidence when they moved. On the above analysis, they had not moved before 19 March 2021 when they refused to accept the Court’s letter of directions and possibly not before 7 May 2021. But even putting their explanation to the highest, either the postman did not make any enquiries and simply ticked reason (4) or the Applicants’ friends for some innocent reason, including their language disability or misunderstanding, refused to accept the letter, the fact remains that the Applicants moved without updating their address with the Court. In Re Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], the Court of Appeal held that it is the applicant’s duty to inform the court of his change in correspondence address and he has to bear the consequence of his failure to comply with that obligation. In summary, the reasons proffered are not genuine; and even if they were, they cannot relieve them of the responsibility for their failure in updating their address with court. The Applicants had no explanation for the very substantial and inordinate delay of eleven and half months.

14.  In Po Fun Chan v Winnie Cheung[4], the Court of Final Appeal held that where an applicant is many months out of time, leave to apply for judicial review may be refused “however strong the complaint might otherwise be”. That is a case of judicial review and not appeal. In the former case, a delay of three months is considered undue, whereas in the latter case the period of appeal is 14 days. In my view the rationale applies with even greater force in the case of extension of time to appeal where the period for appeal is much shorter and where the element of public interest has no bearing.

Prospect of the intended appeal

15.  The 3^rd and 4^th Applicants are infant children of the 1^st and 2^nd Applicants. The centerpiece of their claims is the 1^st Applicant’s land dispute with his uncle who had good relations with a powerful drug dealer. They assaulted him and caused him to be tortured by the Punjabi police for the purpose of extracting a confession to frame a charge of theft against him. The 1^st Applicant was acquitted of the theft charge by the Indian court. On the other hand, drug dealer was prosecuted for some drug charges. Despite some inconsistencies in the 1^st Applicant’s case, the Board accepted the centerpiece of his claims. It also accepted that the uncle and the drug dealer might have caused police attention on the 1^st Applicant through corruption, but found that they were not above the law[5]. On the basis of credible country of origin information (“COI”), it found that the 1^st and 2^nd Applicants made no attempts to access state protection. The Board was not satisfied that the Applicants have demonstrated the absence of adequate state protection[6], except in Punjab[7]. After due consideration, the Board was satisfied that internal relocation to areas outside Punjab is a viable option to avoid the harm and risk[8]. That was on the basis that any harm and risk from the uncle and the drug dealer directly or indirectly through the influence over the police was limited to the state of Punjab[9] and state protection is available outside Punjab[10].

16.  As already foreshadowed in paragraph 12, the Applicants are renewing their fear of harm and risk from the same group of people whom they alleged had threatened and harmed them. The Applicants are not relying on this fact as their ground of appeal. Even if they are, it could not assist them. Insofar as they are relying on it as evidence of the harm and risk they would face on their return to India, they are seeking to challenge the finding of fact of the Board which is not permissible. Furthermore, this is new evidence which is not relevant because as a matter of law the appropriate time to assess their harm and risk is at the time of the hearing before the Board. In any event, as the Board had rejected their evidence of the harm and risk from the primary maker of the threat, ie the Uncle who has died and the drug dealer who has moved to Canada, the threat from their associates could not stand.

17.  In fact, the grounds of the proposed appeal as stated in paragraphs 14 to 26 of the Statement are that (a) the Board erred in failing to conduct a child-specific assessment of the risk of harm and (b) in failing to consider the children while conducting an internal flight alternative assessment. It is well settled principle that in a claim where minors are involved, the decision-maker must give separate consideration to the personal circumstances of each minor claimants separately and not as if they were in one composite claim with their parents.

18.  Under (a), the Applicants referred to pages 149 to 277 of the hearing bundle before the Board and argued that the 1^st Applicant had brought to the attention of the Board the trauma suffered by the 3^rd and 4^th Applicants. They were quiet. They woke up from their sleep and screamed and cried. They do not wish to go back to India. The Applicants relocated several times while in India and went into hiding. They complained that the Board’s Decision was solely focused on the 1^st Applicant’s case without any acknowledgment or analysis as to what impact their refoulement to India would have on the 3^rd and 4^th Applicant.

19.  Despite inconsistencies and gaps in their evidence, the Board assumed in favour of the Applicants the facts as they asserted. It even accepted that the 1^st Applicant was tortured by the police for the purpose of extorting a confession and framed for theft. But it did not accept the 1^st Applicant’s submission about the drug dealer’s influence over the police because according to credible COI that drug dealer was prosecuted for drug offences. It accepted that the 1^st Applicant would be at risk if returned to his home state of Punjab, but found the risk is localized in the state of Punjab. It fully considered the 1^st Applicant’s arguments about unsuitability of internal relocation, but rejected them because he had never ever relocated his family outside the state of Punjab. He had only moved briefly within that state[11]. On the basis of authoritative and credible COI, it found the Applicants could relocate to places other than their home state in Punjab and that it would not be unreasonable to expect them to so relocate. It was on that basis that the Board dismissed the Applicants’ appeal.

20.  The Board’s Decision was focused on the 1^st Applicant’s fear of harm and risk. This was because the 1^st Applicant never made any independent claims of harm and risk for the 3^rd and 4^th Applicants (and the 2^nd Applicant) and no other harm and risk had been advanced or was apparent to the Board. The Board said in paragraph 125 of the Decision:

“The Board finds that only the [1^st Applicant] has made claims in respect of proscribed harm, and the [2^nd, 3^rd and 4^th Applicants] are joined to the Appeal on the basis of their family relationship and not on the basis of any independent claims made pursuant to the USM. The outcome of the family member [Applicants’] Appeal is therefore determined by the Board’s assessment of the [1^st Applicant’s] claims pursuant to the USM.”

21.  This Court had not overlooked the need to consider the 3^rd and 4^th Applicants’ claim independently from their parents’. But on the facts as the 1^st Applicant presented, the 3^rd and 4^th Applicants did not have any independent claims. The evidence about their traumatic experience is collateral injury which will stay with them for the rest of their lives until diluted in the course of time. They will certainly feel more comfortable and less troubling in Hong Kong, but that does not mean they will be at risk, on the Board’s finding, anywhere else outside Punjab in India. Hence, after having fully considered their case, this Court was satisfied that the Board had not erred. The Board generously assumed in favour of the Applicants and was exceedingly fair and reasonable. The Decision is not Wednesbury unreasonable. Hence, this Court held in paragraph 38 that as their (including the 2^nd Applicant’s) claims hinge on the 1^st Applicant’s, their claims necessarily fail. There is no substance in this ground of intended appeal.

22.  Under (b), the Applicants argued that in considering the possibility of internal relocation, the Board should have undertaken an evaluation of all relevant matters including whether the area of relocation is safe and legally accessible, whether the actors of persecution would be likely to pursue them, and whether they would be able to lead a relatively normal life without undue hardship and such evaluation necessarily should include specific consideration of the situation for the 3^rd and 4^th Applicants. They complained that the Board failed to acknowledge the impact such relocation would have on the children, including their immaturity, vulnerability and lower threshold which children could withstand. They also complained that the Board failed to consider the impact on the children’s health, education or development, etc. In support of their argument, they said they had relocated nine times, but their attempts were unsuccessful.

23.  For reasons as explained in paragraphs 21 and 22, the Board gave no specific attention along the lines as argued by the Applicants. Such arguments had never been raised before. In the absence of specific evidence in support, such difficulties as alleged by the Applicants are exaggerated. It is difficult to argue that the children have difficulties being brought up in their home country. As for their argument against internal relocation based on their failed attempts, the Board had dismissed such argument because such relocations were brief and within Punjab[12]. These are finding of facts based on credible COI and the evidence of the Applicants.

24.  In conclusion, the grounds of the intended appeal are challenges against the finding of fact of the Board, which this Court had rigorously examined with anxious scrutiny and was satisfied that there was no error of law, procedural unfairness and irrationality. Having re-examined them in the light of the arguments now advanced by the Applicants, this Court’s view remained unchanged. This Court is not satisfied that there is any prospect of success in the intended appeal.

Prejudice to the respondent

25.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

26.  The Applicants have no explanation for the substantial and inordinate delay. They have been sitting on their right to appeal which indicates an absence of a good ground of appeal. Indeed, there is no prospect of success in their intended appeal. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, their application for extension of time to appeal is refused.