RE GOVIND SINGH

CACV 132/2021

[2021] HKCA 1893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 132 OF 2021

(ON APPEAL FROM HCAL 977 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 19 March 2021 (“Judge’s Decision”) refusing to extend time for an application for judicial review and declining to grant leave for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 21 January 2016 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) for failing to establish any torture risk[1], persecution risk[2] or “BOR 3” risk[3] by a notice of decision dated 27 October 2015 (“Director’s Decision”).

2.  For the sake of completeness, we should mention that the Director also, by a notice of further decision dated 22 February 2017, rejected the NRF Claim for absence of “BOR 2” risk[4].  The applicant has not taken any step in respect of such later decision by the Director.

Basis and allegations in support of NRF Claim

3.  The basis of the NRF Claim made by the applicant, a national of India, is a fear of being harmed or even killed by his paternal uncle (“Uncle”) and his 3 sons (“Subash”, “Krishan” and “Shamsher” respectively and “Cousins” collectively) because of a land dispute and the applicant’s different political affiliation.

4.  The circumstances allegedly giving rise to such fear have been set out in paragraph 8 of the Director’s Decision, paragraphs 6 and 8 of the Board’s Decision and [1] to [4] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 740 (“Form CALL-1”).

5.  Briefly:

(1)     Subash, Krishan and Shamsher were a policeman, soldier and businessman respectively.

Land dispute

(2)     The applicant’s branch of the family and Uncle’s branch had been engaged in a dispute, which had started even before the applicant was born and which ran from generation to generation, over the division of a piece of land in their home village.

Different political affiliations

(3)     Uncle and Cousins all supported the Bharatiya Janata Party (“BJP”).

(4)     Subash was married to the daughter of the health minister of Jammu and Kashmir appointed from the BJP (“Choudhry”).

(5)     On the other hand, the applicant had since September 2014 supported the Indian National Congress Party (“INC”).

(6)     In September 2014, Subash and Shamsher assaulted the applicant for gathering votes for one “Jagdish”, an INC candidate for membership of the Legislative Assembly during the election held in late 2014.  They threatened the applicant that they would finish him and his family off.

(7)     A complaint by the applicant’s father to the Rajbagh police station (where Subash worked) resulted in a compromise just requiring Subash and Shamsher to agree not to further harm the applicant.  No formal report was filed as a result of the compromise.

(8)     The BJP won the election.  On 23 December 2014, after the release of the election results, Shamsher and 10 to 12 of his friends threatened the applicant that they would not let him work anymore and that they would finish him and his family off.

(9)     The applicant then started to receive as many as 5 to 6 phone calls per day from Cousins and other men who identified themselves as their friends.  They warned that they would not spare the applicant and would finish him and his family off.

(10)     The applicant did not report the verbal threats to the police, believing that it would be pointless since Subash worked in the police station and the Indian police was corrupt.

(11)     In March 2015, when Choudhry became health minister, the applicant’s supplier told him that they would stop supplying to his store under the order of some unidentified government official(s).

(12)     In late March 2015, Jagdish advised the applicant to leave India. Otherwise he would be constantly harassed for as long as the BJP remained in power, which would be at least 5 years.

(13)     The applicant moved to Talab Tillo City to stay with his sister in March 2015 for 5 months, during which he continued to receive threatening phone calls from Cousins and their friends.  He learnt from his friends that they were looking for him.

(14)     The applicant eventually left India.

Arrival in Hong Kong and lodgment of NRF Claim

6.  The applicant arrived in Hong Kong on 31 July 2015.  He raised the NRF Claim upon being refused permission to land.

Director’s Decision

7.  After considering the information provided by the applicant in his non-refoulement claim form dated 29 September 2015 and at the screening interview on 15 October 2015, the Director found the NRF Claim unsubstantiated for torture risk, persecution risk or “BOR 3” risk.

(1)     First, the risk of future harm from Uncle and Cousins was low.  The land dispute was stale.  The claimed ill-treatment did not seem to relate to the land matter.  As for the political differences, the applicant was just a low level supporter of the INC.  Uncle and Cousins held no position in the BJP either.  After the election, the applicant had only been verbally threatened.  The death threats were never carried out.

(2)     Second, the availability of reasonable state protection would lower or even negate the risk, if any.  There is objective country of origin information (COI) showing that the Indian government has taken practical steps, with positive results, to improve institutional effectiveness and to monitor the conduct of the police.  There are also alternative avenues for seeking justice in India.  It was the applicant who chose not to seek help from the police.

(3)     Third, the perceived risk, being localised, can be reduced by internal relocation within a large and populous country like India.  There is no fact to suggest that Uncle and Cousins still have any adverse interest in the applicant or are resourceful enough to locate him anywhere in the country.  The applicant, an able-bodied adult with 10 years of business experience, would suffer little or no hardship in moving to say Delhi.

Appeal to Board and Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board.  The Board conducted a rehearing of the NRF Claim on 30 December 2015, at which the applicant gave evidence and answered the Board’s questions through an interpreter.

9.  The Board dismissed the appeal.  It was particularly influenced by the lack of any objective support of many of the events allegedly giving rise to the applicant’s fear.  The Board also disagreed that there would have been lack of state protection if the applicant had sought the same.  

Application for leave for judicial review and Judge’s Decision

10.  The last day on which the applicant could apply for judicial review of the Board’s Decision under Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) was 21 April 2016.

11.  After a delay of more than 2 years, by a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 977/2018 on 30 May 2018 and a supporting affirmation filed on the same date, the applicant applied for judicial review of the Board’s Decision on grounds cited by the Judge at [10] of the Form CALL-1 as follows:

“(1) that the Board failed to conduct inquiries from reliable sources and did not fully study the ground realities of his case and aftermath of being forced to return to his home town;

(2) that the Adjudicator just refused his appeal without any reasonable ground; and

(3) that the Board’s decision is betrayed by a bias and formulaic approach unlikely to be able to fairly assess the danger to his life in the light of new law that relocation is practically impossible as the fight against terrorism touches new high that state protection in fact is non-existent.”

12.  The Judge refused to extend time and dismissed the leave application after an oral hearing for the reasons set out in [12] to [18] of the Form CALL-1:

“12.     As the last day of the three-month period for the Applicant to file his Form 86 fell on 21 April 2016, the Applicant was therefore more than 2 years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.     In the Applicant’s case, a delay of more than 2 years must be considered as extremely substantial and excessive, for which he did not appear to have provided any proper explanation in his supporting affirmation other than some mention of his previous failed application for legal aid which cannot in my view be accepted as a valid reason for procedural breaches, let alone such a serious one, while at the hearing of his application he simply claimed not to know of the rule requiring the making of his application within the prescribed period. As such I do not find any good reason for his such serious delay.

14.     As for the merits, if any, of his intended application, the Applicant’s proposed grounds for his intended challenge all appear to me just some broad and vague assertions of his without any proper details or particulars or elaborations as to how they applied to the Board’s decision, and given the clear and correct findings of both the Director and the Board that his claimed risk of harm was a localized one without any state or official involvement that state/police protection would be available upon his return to his home country, I do not find any of his complaints relevant to his claim or that they would assist his case, nor would they be reasonably arguable for his intended challenge.

15.     As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.     In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.     In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.     For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

Appeal to Court of Appeal

13.  By the notice of appeal filed herein on 26 March 2021, the applicant appealed against the Judge’s Decision without stating any ground of appeal.

14.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 3 June 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

15.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

16.  The hearing date on 10 August 2021 was therefore vacated, leaving us to deal with the appeal on paper on the basis of the material already filed with the court.

Discussion

17.  In view of the stroppy manner in which the applicant conducted this appeal, we can dispose of the same shortly.

18.  The Court of Appeal will interfere with a refusal of leave to apply for judicial review if and only if the appellant raises ground(s) of appeal showing that the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2) & (4)].

19.  The applicant simply did not in the notice of appeal before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

20.  We have no other material to work with in the absence of any written submission from the applicant.

21.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are both in order.

Disposition

22.  For these reasons, we see no basis to interfere with the Judge’s Decision.  Accordingly, we dismiss the appeal.