RE MANDIP SINGH

CAMP 80/2018

[2018] HKCA 501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 80 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 759 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  By summons filed on 1 June 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 11 May 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 23 February 2017 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 13 April 2015 rejecting his non-refoulement claim.

2.  Under Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is an Indian national.  He came to Hong Kong on 14 September 2010 and was permitted to remain as visitor until 28 September 2010.  He overstayed and was arrested by the police on 5 October 2010.  He raised a non-refoulement protection claim on 13 October 2010.

4.  The applicant’s claim is based on his fear that if he were to return to India, he would be seriously harmed or killed by the brother and father of his girlfriend because he continued to meet his girlfriend against her family’s wish and warning. 

5.  According to the applicant, his girlfriend, Amarjit, lived in a village about 3-4 km away from his home village, which is located in the Jalandhar district.  Her father was a well-known and influential police officer in Jalandhar city.  The applicant met Amarjit in about February or March 2010 and they began seeing each other thereafter.  Sometime in July 2010, Amarjit’s brother met the applicant and told him his family did not want him to see Amarjit because their family status and wealth were incompatible and also because Amarjit should not be seeing male friends before marriage.   He threatened that if the applicant were to see Amarjit again, there would be very harsh consequences because their father was an influential police officer.  The applicant promised not to call Amarjit again.  Some days later, the applicant met Amarjit’s father and brother on their request.  The father threatened the applicant he could frame him up with drug offences and imprison him if he did not end the relationship with Amarjit.  Despite his promise not to see Amarjit, the applicant continued to meet her.  One day when the applicant was going out, he was stopped by Amarjit’s brother who issued him a final warning, saying he would not spare him if he continued to see Amarjit.  The applicant did not report these incidents to police since Amarjit’s father was a police officer. Fearing for his safety, the applicant’s father made arrangement for him to leave India.  Eventually, the applicant left India for Hong Kong on 13 September 2010.  The applicant later learned that Amarjit was engaged with someone from Canada and would be marrying in May or June 2015.

6.  The Director rejected the applicant’s non-refoulement claim on 13 April 2015 having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3].  The applicant’s appeal to the Board against the Director’s decision was heard on 3 June 2016.  The applicant elected not to give evidence.  By a decision dated 23 February 2017, the Board dismissed the applicant’s appeal. 

7.  The Board was of the view that it was extremely unlikely that his feared ill-treatment would materialise, having regard to the absence of any ill-treatment inflicted on him or threat to his life being uttered by Amarjit’s brother and father and that there was a long lapse of time since 2010.  The Board further considered that state protection was available and internal relocation is feasible, both of which would further reduce or negate the perceived risk of harm.  The Board concluded that, on the applicant’s case, he failed to satisfy the legal requirements for establishing any of the torture risk, BOR 3 risk or persecution risk grounds.   

8.  Subsequent to the Board’s decision, the Director by letter dated 19 July 2017 invited the applicant to submit additional information relevant to a BOR 2 claim[4]. The applicant did not respond to the invitation.  The Director proceeded to assess the applicant’s case under the BOR 2 risk ground on the basis of the information and materials that were previously submitted by the applicant.  By a further decision dated 19 September 2017, the Director decided against the applicant on the BOR 2 risk ground.  It did not appear from the papers before the Court that the applicant had appealed to the Board against the Director’s further decision. 

9.  The applicant filed his Form 86 on 12 October 2017 together with a supporting affirmation.  The applicant had not given any grounds for his application in either document.  He merely said in his affirmation that he could not go back to his country at this moment because his life was still in danger, and asked to stay in Hong Kong until his problem was solved.   

10.  The applicant did not request an oral hearing, and the Judge decided the application on paper.  The Judge noted that the application was made out of time, being more than three months from the date of the Board’s decision[5]. He, however, considered there was good reason for allowing the application to be made out of time and proceeded to consider the merits of the application. The Judge refused to grant leave to apply for judicial review and gave his reasons at [24] to [28] of the CALL-1 Form dated 11 May 2018 as follows:

“24. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

25. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’[6]

26. The Applicant's claim was a simple one. It is apparent from the Adjudicator’s report that he was alive to the issues of the Applicant's claim. He had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator’s reports showed he was acquainted with the facts and the law. He considered the Applicant's case carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were not Wednesbury unreasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

27. The Director is an interested party in the current application. For the sake of ‘rigorous examination and anxious scrutiny’, I have also reviewed the Director's findings, conclusions and decisions. I am satisfied they were not Wednesbury unreasonable. The Director made no errors of law and there was no procedural unfairness. What has been said of the Adjudicator in paragraph 26 above is also true of the Director’s case. The Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

28.  The Applicant fails to put forward any complaint that is reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.

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[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.”

11.  The 14-day period for the applicant to appeal against the Judge’s decision ended on 25 May 2018[6]. On 1 June 2018, the applicant took out the present summons seeking leave to appeal out of time.

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

13.  In this case, the applicant was late by one week, which is not a very serious delay.  The applicant explained that he received the Judge’s decision late and did not know how to fill in the appeal documents until a friend came to his assistance.  We are prepared to accept the explanation.

14.  We turn to assess the prospects of the intended appeal against the Judge’s decision, which is a crucial consideration in an application to extend time: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

15.  The applicant has not given any grounds for his intended appeal.  He only said in his supporting affirmation that he could not go back to his country at this time.  In his written submission, the applicant stated that he could not go back as his enemies were powerful and influential, they always come to his home to locate him and because they had good network and money there was nowhere that he could hide.

16.  Although the applicant’s Form 86 and supporting affirmation did not set out any grounds for his intended judicial review, the Judge had reviewed both the Board’s and the Director’s decision and concluded that their decisions were not Wednesbury unreasonable, contained no errors of law or procedure or procedural unfairness.  We see no basis to disturb the Judge’s conclusions.  We agree that the applicant’s intended judicial review is not reasonably arguable and has no realistic prospect of success.

17.  As the intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

18.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of High Court that the applicant may not request our determination to be reconsidered at an oral hearing.