RE SANDAL LAKHWINDER SINGH

CAMP 237/2021

[2021] HKCA 1674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 237 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1267 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for leave to appeal out of time against the decision of Deputy High Court Judge K W Lung (“Judge”) on 12 March 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 26 June 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 19 February 2016 and 2 March 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 24 May 2021, the Judge refused to grant an extension of time for the applicant to appeal against his decision of 12 March 2021.

Background

3.  The applicant is an Indian national.  He arrived in Hong Kong on 27 March 2014 and was permitted to remain as a visitor until 30 March 2014.  He did not depart, and overstayed.  He was arrested by the police on 23 April 2014 for overstaying, and lodged his non‑refoulement claim two days later. 

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed by Satpal Singh, President of the Shiromani Akali Dal party in his home village, due to Satpal’s violent attempts to take over or seize the applicant’s father’s land.  The factual background was summarized at [11] of the Board’s decision.

5.  By notices of decision dated 19 February 2016 and 2 March 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former covered BOR 3 risk,[2] persecution risk,[3] and torture risk;[4] the latter covered BOR 2 risk.[5]

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 4 August 2017, during which the Board went through all the evidence contained in the Board hearing bundle with the claimant.  The claimant confirmed that all of the evidence was true and accurate, which he would adopt in its entirety, and that he had nothing to add, alter or correct.

7.  The Board accepted the claimant’s factual allegations.  However, the Board considered that the injuries or ill‑treatment suffered by the claimant were not sufficiently grave to merit non‑refoulement protection.  Moreover, Satpal’s main target was the applicant’s father, who continued to live in his home town, and there was no evidence that his father was subjected to any further attacks.  The Board therefore found that there was no real risk of harm in the event of refoulement.  The Board was also satisfied that adequate state protection was available.  Accordingly the Board dismissed the applicant’s appeal on 26 June 2018 in relation to all applicable grounds.

The Judge’s decisions in the court below

8.  On 4 July 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  However, he did not advance any grounds for judicial review in either his Form 86 or supporting affirmation. 

9.  Following consideration of the documents only, on 12 March 2021 the Judge refused to grant leave to apply for judicial review. 

10.  On 16 April 2021, the applicant filed a summons to seek an extension of time to appeal against the decision of the Judge.  In the supporting affirmation, he deposed that he did not receive any letter even though he changed his address with the Immigration Department, because he did not know that he also needed to change his address with the High Court and he did not know the judicial review system in Hong Kong.  He further deposed that it was only when he reported to the Immigration Department that he was told that his case had been dismissed by the High Court.  He did not set out any proposed grounds of appeal in his application.

11.  The Judge determined the application without an oral hearing and dismissed the summons in a decision given on 24 May 2021,[6] as there was no prospect of success in the intended appeal.

The renewed application before this Court

12.  On 2 July 2021, the applicant took out a summons seeking leave from this Court to appeal out of time against the decision of the Judge dated 12 March 2021 refusing leave to apply for judicial review.  In his supporting affirmation, the applicant essentially repeated what he stated in the affirmation of 16 April 2021 placed before the Judge.

13.  The applicant lodged written submissions on 9 July 2021.  Those submissions however consist virtually entirely of general statements of law quoted from case law without identifying how they specifically relate to or apply in this case.  In the middle of page 2 of the submissions the applicant states that the Board acted in a procedurally unfair manner by failing to properly assess his credibility, but no particulars are given.

14.  At the end of those submissions, the applicant referred to a big protest in Punjab against the government, and stated that the government was really torturing Sikh people, that the police ignored complaints because all the head officers were Hindu, and that his opponent had a lot of property and bribed the police and other departments to control the land.

15.  On 15 October 2021, the applicant filed an affirmation stating that he wished to withdraw his leave application for judicial review and to return to his country where his life would be safe now.  He requested to withdraw his judicial review.  This evidently means that the applicant does not wish to pursue his application for an extension of time to appeal against the Judge’s refusal of leave for judicial review.  The application should therefore be dismissed.

16.  In any event, having considered the materials before us, we are of the view that there is no reasonably arguable ground for judicial review established, and that the intended appeal has no reasonable prospect of success.

17.  For these reasons, we dismiss the applicant’s summons dated 2 July 2021.