INDERJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

CAMP 579/2021

[2022] HKCA 708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 579 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1947 OF 2018)

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J U D G M E N T

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

1.  This is the Applicant’s application for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 13 May 2021 refusing to grant leave to the Applicant to apply for judicial review.

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.  The Applicant is a national of India. He last arrived in Hong Kong on 13 April 2007 with permission to remain as a visitor up to 27 April 2007. He overstayed and was arrested by the Police on 24 June 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India, he would be harmed or killed by his former business partner over some monetary dispute. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2021] HKCFI 1357).

4.  By a Notice of Decision dated 31 October 2014, Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture[1], BOR 3 risk[2], and persecution risk[3].

5.  On 13 November 2014, the Applicant appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”).

6.  On 1 December 2016, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision. The Board found no reliable evidence of any real risk of harm to the Applicant in India arising from his alleged private monetary dispute, and considered that in any event, reasonable internal relocation within India was available to the Applicant to move safely to other areas away from his home district without any risk of being located by his former business partner. Accordingly, the Board rejected his claim for non-refoulement protection.

7.  On 3 January 2017, the Director on his own initiative invited the Applicant to submit any additional facts which might be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including BOR 2 risk[4]. In the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 1 February 2017 rejected his BOR 2 claim.

8.  On 20 March 2017, the Applicant lodged an appeal to the Board against the Director’s further decision. On 31 August 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s further decision dated 1 February 2017 (“the Board’s Decision”). In the Board’s Decision, the Board found that, in the absence of any additional facts from the Applicant, he had failed to establish any claim for non-refoulement protection based on BOR 2 risk.

JUDGE’S DECISION

9.  On 14 September 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

10.  On 13 May 2021, the Judge made an order refusing to grant leave to the Applicant to apply for judicial review. At §§12-14 of the Form CALL-1, the Judge stated as follows:

“12. 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.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their earlier decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. 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.”

11.  On 1 December 2021, the Judge dismissed the Applicant’s summons of 8 July 2021 seeking an extension of time to appeal against his order of 13 May 2021.

THIS APPLICATION

12.  By a summons taken out on 21 December 2021, the Applicant applied for an extension of time to appeal against the Judge’s order of 13 May 2021. In his supporting affirmation filed on the same date, the Applicant wrote that he wanted to appeal because his case was refused.

13.  The Applicant has failed to lodge any written submissions in support of his application contrary to the directions of the Registrar of Civil Appeals dated 21 December 2021.

DISCUSSION

14.  In deciding whether to grant an extension of time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.  The prospect of success of an intended appeal is important. The court will not grant extension of time for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

16.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

17.  The Applicant has not pointed to any error in the Judge’s decision dated 13 May 2021, or raised any viable ground of appeal against the Judge’s decision. There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons of 21 December 2021 is dismissed.