RE AMANDIP SINGH

CAMP 35/2021

[2021] HKCA 1773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 35 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 172/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 12 October 2018 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 31 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 28 October 2015 and 12 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 28 April 2012 as a visitor and was permitted to remain until 3 May 2012.  He overstayed and was arrested on 4 June 2013.  He lodged a non-refoulement claim on 6 June 2013. 

3.  The applicant’s claim was based on threats from his brother-in-law and his fellow supporters of the Akali Dal political party (“AD”).  The details of the applicant’s claim have been summarised by the judge at [1] to [7] of the CALL-1 Form.

4.  By a Notice of Decision dated 28 October 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

5.  By a Notice of Further Decision dated 12 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 16 January 2018, the Board dismissed the appeal on 31 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At the hearing before the Board, the Board explained to the applicant that it would not be able to assess the credibility of his account unless he answered questions from the Board.  The applicant elected not to give evidence.  At [53] – [62] of the Board’s Decision, the Board held that there was insufficient evidence to show that the applicant would face any of the proscribed risks of harm upon his return or that internal relocation would not be viable. 

The judge’s decision

8.  The applicant filed a Form 86 on 5 February 2018 seeking to judicially review the decisions of the Director and the Board’s Decision, which contained the following grounds for judicial review, as summarized by the judge at [13] of CALL-1 Form:

(1)  irrationality in that the Board relied on outdated insufficient and narrow COI which were no later than 2015 with the majority of them very general in nature in their treatment of the issues and therefore the adjudicator arrived at a decision not reasonable to the Wednesbury standard;

(2)  procedural impropriety/unfairness in the Board’s failure to enquire or discover why the applicant refused to appear before the Board to be examined in person;

(3)  procedural impropriety/unfairness in the Board’s failure to call for any psychological or psychiatric evaluation and report on the applicant;

(4)  procedural impropriety/unfairness in the Board’s failure to take into account of the cultural experience of the applicant; and

(5)  procedural impropriety/unfairness in the Board’s failure to take into account the nexus of political parties and official corruption which exists in India making the persecution of the applicant effectively persecution by the state.

9.  In his affirmation in support of the leave application filed on 5 February 2018, the applicant exhibited the relevant documents without giving any ground for judicial review.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [22] of the CALL-1 Form:

“14. For ground (1) of his complaint of the Board relying on outdated COI which were too general in their treatment of the issues, the applicant did not provide any particulars or specifics or elaboration as to how such COI, if indeed they were outdated or too narrow or too general, had led to the Board’s decision being irrational or Wednesbury unreasonable in the public law sense. In the absence of any legal error being identified by the applicant, I find this complaint of his without merit.

15. As for grounds (2), (3) and (4) which can be considered together due to the similar nature of the applicant’s complaints essentially over the Board’s rejection of his claim on credibility when he declined to testify at his oral hearing, of which the applicant argued in the Form as follows:

‘2. The principal reason given by the Adjudicator for denying the appeal was that the Applicant had refused to appear personally to be examined. It is submitted that it would be reasonable to have taken into consideration the Applicant’s state of mind in doing so. The Applicant claims to have been persecuted, subjected to violence and threats of violence. He feels that these threats are present even in Hong Kong. His family is possibly also in danger and he is uprooted and separated from home and family. With the weight of these concerns upon his mind, it would be understandable that he does not always make decisions in accord with his best interests. In this regard, the Adjudicator should have called for a psychological or psychiatric report before making a decision.

3. Further, the cultural background of the Applicant is one where official and police corruption are rife. In such a mindset the authorities are not easily trusted and making statements before an official in a personal capacity is not only frightening but subjectively dangerous. The Adjudicator could have called for more information from the Applicant in writing, at least as an initial stage.’

16. These alleged psychological and cultural backgrounds of the applicant which he claims to have affected or inhibited his decision to give evidence were however never raised nor were apparent during his oral hearing before the adjudicator who recorded this in the Board’s decision:

‘59. At the hearing on 16 January 2018 it was repeatedly and clearly explained to the Applicant that the Board would be unable to assess the credibility of his account unless he was prepared to give evidence and answer questions from the Board. The consequence of failing to give evidence were made clear to the Appellant. Nevertheless he persisted [my emphasis] in refusing to give evidence.’

17. Nor can I find any indication or suggestion in his earlier NCF or record of his screening interview before the Immigration Department to suggest that a psychological or psychiatric report may be necessary when he was clearly able to present and articulate his claim without any difficulty during that process, and I find it difficult to accept that the applicant as a claimant for non-refoulement protection would not want to seize the opportunity at his appeal hearing to persuade the Board and the adjudicator by way of oral evidence that the Director was wrong in rejecting his claim, whatever the psychological or cultural inhibition he may have at that time. There is simply no evidence to suggest that his refusal to testify at his appeal hearing before the adjudicator was due to any psychological or cultural inhibition on his part, and that this argument seems to me just a belated but lame attempt to justify his refusal to testify at that hearing and to shift the blame onto the Board. In the premises I do not find any merit or basis in these grounds of the applicant.

18. As for his last ground about the adjudicator’s failure to take into account of the nexus of political parties and official corruption in India which made the persecution of him as one by the state, his argument in his Form is this:

‘4. From the COI used by the Adjudicator, it appears that there is some understanding of police and political corruption in India. However, there is a close nexus between these in India. The corruption is not merely pecuniary but also a culture of favours and abuse of power. In addition, the Akali Dal Party was the government of Punjab until March 2017 and could, as a large and significant party, easily be again. It has close links to the Bharatiya Janata party which is extremely large and powerful party in India and at present forms the government of the nation. The Adjudicator dwelled too much on the origin of the dispute with AK and RK and failed to give due emphasis to the fact that the persecution was and continues to be effected by political organizations with close links to government and by the police, an organ of the State. This means that, effectively, the persecution directed against the Applicant is a form of State persecution or at least that it is done by or with the acquiescence of State Officials.’

19. For the reason already given by the adjudicator in the Board’s decision as noted above, and as clearly found by the Director in his decision and accepted by the Board, the applicant’s alleged fear of harms from AK arose from a private and personal dispute between two families without any official involvement based on the evidence available the evaluation of which the Director was entitled to make as the primary decision maker, and there is simply no evidential basis before the adjudicator for him to otherwise look into the possibility of any state persecution against the applicant in the circumstances of his case.

20. Further, while the COI relied on by the Director and the adjudicator may corroborate the applicant’s assertion of political and police corruptions in general in India, as held by the Court of Appeal, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or persecution upon his return: see Re RS CACV 206/2012, 20 August 2013. There is simply no basis for any suggestion that the extended concept of state acquiescence is applicable in this case, nor is there basis to accept that upon his return to India, the applicant would face any real and personal risk of being subjected to persecution by the state or the government arising from his dispute with AK. In the premises those additional COI submitted by the applicant in his present application though more recent or more updated would not in my judgment advance his claim any further.

21. In the premises and having proceeded to consider 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.

22. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 4 August 2020, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 14 January 2021.

12.  By a summons filed on 28 January 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons he applied for leave to “advance a new sole ground of appeal” but he did not specify the ground.

13.  In the affirmation filed on the same day, the applicant deposed that:

“The decision dated 14^th January 2021…has been reached unfairly. I tried to explain my situation to the court with the supporting evidences about why I failed to seek assistance in the given time limit but the court has disregarded my explanation and found it unreliable. Moreover, it is not sufficient that I was a litigant in person, illiterate and unrepresented, thereby making me unaware of the legal procedures and the time limits. So, I humbly request the court to allow me appeal out of time.”

14.  In his skeleton submissions lodged on 30 March 2021, the applicant submitted that:

(1) the Board failed to properly assess the credibility of the applicant; and

(2) the applicant referred to a number of authorities on high standards of fairness (including ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289) and s37ZT of the Immigration Ordinance, without explaining their relevance.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

16.  The applicant’s explanations for the delay in bringing the intended appeal have been recorded by the judge in the decision dated 14 January 2021.  The applicant complained that the judge ignored his explanations and erred in founding them unreliable.  However, the applicant did not give any particulars for his complaints and we also see no error in the judge’s finding.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal. 

17.  We nonetheless go on to consider the merits of the intended appeal.

18.  In relation to the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair. 

19.  As for the grounds related to alleged errors on the part of the Board, this court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.  The grounds against the Board are therefore not valid grounds of appeal and we would dismiss those grounds as well.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 28 January 2021 is dismissed accordingly.