RE BITTA SINGH

CAMP 396/2022, [2024] HKCA 888

On Appeal From [2022] HKCFI 1127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 396 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 445 OF 2019)

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J U D G M E N T

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

1.  By a summons filed on 30 September 2022, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge To (“the Deputy Judge”) dated 21 April 2022 refusing to grant the applicant leave to apply for judicial review ([2022] HKCFI 1127) (“the Leave Decision”).  Later, by a decision dated 12 August 2022, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 2447) (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 14 January 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 May 2018 rejecting the applicant’s non-refoulement claim.

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of India.  He last entered Hong Kong on 30 June 2011 and was permitted to remain as a visitor until 14 July 2011.  However, he did not depart and had overstayed since 15 July 2011. On 28 November 2011, he was arrested by the police. On 1 December 2011, he raised a torture claim which was rejected by the Director on 27 June 2012.  Upon the commencement of the unified screening mechanism, his claim was taken as a non-refoulement claim and assessed on all applicable grounds other than torture risk^[1]. His claim was made on the basis that, if refouled, he would be harmed or killed by Joginder Ram who is a tenant of the applicant but refused to pay rent over a piece of land, and threatened to kill both of the applicant and his brother after they demanded for the rent.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] ‑ [11] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim on all applicable grounds other than torture risk, namely, BOR2 risk[2], BOR3 risk^[3], and persecution risk^[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons for its decision were summarised by the Deputy Judge at [12] ‑ [20] of the Leave Decision.  In essence, the Board found that the applicant’s allegations about the three incidents of assaults from his tenant was very vague[5] and did not accept that there was any real intention of his tenant to seriously harm or kill the applicant or his brother other than deterring them from pursuing the rent[6].  In any event, the Board found that his feared risks were unlikely to materialise and both state protection and internal relocation would be available[7].  Accordingly, the Board considered that the applicant had failed to substantiate his claim on any of the applicable grounds under his non-refoulement claim and dismissed his appeal.

The Leave Decision

7.  On 18 February 2019, the applicant filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision and the Director’s Decision[8]. The applicant did not advance any ground of review in his Form 86 and only stated in his supporting affirmation that the Immigration Department disregarded the dangers and threats he would face if refouled.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review.  His reasons were set out in detail at [25] ‑ [30] of the Leave Decision:

“25. With the greatest respect to the Board, its finding is equivocal. It pointed out the vagueness of the Applicant’s evidence, but did not make any finding if it accepted or rejected his evidence. Then, it proceeded to assess the Applicant’s claim on the basis of the case as he asserted and concluded that he only made out a very vague case. It is open to a Board to make a positive finding one way and reach a conclusion; and then proceed on an alternative finding to come, usually, the same conclusion. But the Board’s position is equivocal. In the circumstances, it must be assumed in favour of the Applicant that the Board nevertheless accepted, at least, the core the Applicant’s case, i.e. the threat and the two incidents in April and June 2011.

26. In paragraph 58 of the Decision, the Board held that as the Applicant and his brother had ceased approaching the tenant for rent since 20 October 2010, they should be safe from the tenant. This secondary finding is rested on a factually incorrect premise because according to the Applicant’s evidence as quoted in paragraph 21 of the Decision, he and his brother demanded rent from the tenant three months later in January 2011 and the tenant responded with a threat to kill them. Then that threat was followed by the two incidents in April and June 2011. This is a finding of fact not supported by evidence. It is a finding made as a result of error of law.

27. In paragraph 61 of the Decision, the Board considered the Applicant’s evidence about the two incidents. It said it did not believe the tenant needed to send people out to look for the Applicant and his brother. Whether a person needed to do an act complained of and whether he in fact did the act complained of are two different matters. The Board was again equivocal. It then assessed the Applicant’s claims on the basis that the two incidents had indeed taken place. It inferred from all the circumstances that the tenant’s intention was only to deter the Applicant and his brother from pursuing rent against him. The reason for drawing the inference was that what the tenant needed to do was to sit and wait for the Applicant and his brother to come. There was no need to send people to kill them and there was real reason to kill just for the amount of rent in issue. The Court could find other reasons in support of the inference, but there was no need for the Court to substitute the Board’s reasons by its own. Suffice it is to say that this is a finding of fact solely for the Board and there is evidence on which the Board could draw such inference.

28. Having considered the COI, the Board found that state protection of a sufficient standard is available to prevent or minimise the harm and that there are functional legal and judicial machineries to enable the Applicant to enforce his rights to possession of his land. It rejected the Applicant’s assertion that state protection is unavailable as a sheer exaggeration. It also found internal relocation a viable alternative to avoid the risk and harm altogether. These are finding of facts solely within the province of the Board.

29. The blemish caused by the error of law was cured by the Board’s assessing the Applicant’s claims on the basis of the case as asserted by him and by the finding of availability of state protection and internal relocation. Looked in the round, despite the blemish, the Board’s finding that the Applicant had failed to substantiate that he would face genuine and substantial risk to his life, if refouled, is unassailable. It also follows from that finding that the Board’s conclusion that he failed to prove his entitlement to protection under any of the remaining three applicable grounds under the USM is correct.

Conclusion

30.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim on the basis of his case as asserted by him.  It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the remaining three applicable grounds.  The Court had rigorously examined the Decision with anxious scrutiny and identified an error of law in one of the Board’s finding of fact.  However, that error was circumvented by the Board assessing the Applicant’s claims on the basis of his case as asserted by him. The error was not operative.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  There is no such vitiating element in the Decision.  The proposed judicial review has no realistic prospect of success.”

The EOT Decision

9.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

10.  On 16 May 2022, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was 11 days late with his intended appeal. In his supporting affirmation, the applicant contended that he did not receive the Leave Decision from the High Court.

11.  As the explanation for the delay given by the applicant in his supporting affirmation was a mere assertion without any corroboration or independent evidence in support, the Deputy Judge directed him by letter dated 2 June 2022 to file a statement by 16 June 2022 setting out, among other things, details relating to his receipt or noticing of the Leave Decision, and grounds of the proposed appeal. He was also advised that his EOT Summons would be determined on paper after 21 days of the directions, regardless of whether the directions given had been complied with. However, the applicant did not respond to this letter or put in any additional information.

12.  By the EOT Decision, the Deputy Judge did not accept that the applicant had a valid explanation for his delay of 11 days, noting that the letter dated 2 June 2022 was posted to his last reported address, which was the same address as provided in his EOT Summons and the present summons, without being returned through undelivered post.  As the applicant had no arguable grounds of appeal and his intended appeal has no prospect of success, the Deputy Judge refused his application for extension of time to appeal.

The present application

13.  By a summons and a supporting affirmation both filed on 30 September 2022, the applicant reapplied to this Court for extension of time to appeal against the Leave Decision.  In his summons, the applicant claimed that he did not receive the letter from the High Court.  In his supporting affirmation, the applicant stated that he disagreed with the Deputy Judge’s decisions and complained that the Deputy Judge failed to find any error in the decision that dismissed his claim and did not give any reason for refusing to grant him leave to apply for judicial review.

14.  Contrary to the directions made by the Registrar of Civil Appeals on 30 September 2022, the applicant failed lodge his written submissions.

Discussion

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  The applicant’s delay of 11 days is not insubstantial, and we agree with the Deputy Judge that the applicant had failed to give explanation for his delay.  For the present purpose, we will focus on the merits of his intended appeal.

17.  The 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].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  In our view, this application has no merit at all and must fail.  The applicant fails to identify or show with specific particulars any error or raise any viable ground of appeal against the Leave Decision.  His complaints are all general and bare assertions without any specific particulars in support.  None of his complaints are proper grounds of appeal.  His appeal must fail on this basis alone.

19.  In any event, we have considered the Leave Decision and the detailed reasons given for that decision carefully.  In the present case, we agree with the Deputy Judge that the Board made an error in its finding that the applicant and his brother should be safe from the tenant after they ceased to approach the tenant since October 2020 without having regard to the applicant’s evidence that the applicant and his brother demanded rent from the tenant three months later in January 2011, but received death threat from the tenant in that occasion[9]. However, as correctly pointed out by the Deputy Judge, the Board’s error does not affect its proper finding on the availability of state protection and internal relocation in the applicant’s case after considering the relevant Country of Origin Information which are matters primarily within the province of the Board.  We see no basis to interfere with the Leave Decision.

20.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 30 September 2022 is dismissed.