RE KARNAIL SINGH

CAMP 91/2018

[2018] HKCA 551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 91 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 532 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 22 June 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 7 June 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 31 July 2017 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 25 October 2016 rejecting his non-refoulement claim.

2.  Having considered the papers, we are of the view that it is appropriate to determine the application on paper without a hearing pursuant to Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A.

3.  The applicant is an Indian national. He entered Hong Kong on 9 May 2011 and was granted permission to remain as a visitor until 23 May 2011. He overstayed and was arrested by the police on 7 August 2013. He was sentenced to two months’ imprisonment for breaching a condition of stay. He lodged a non-refoulement protection claim on 28 December 2015. 

4.  The applicant’s non-refoulement claim was based on his fear of being harmed or killed by the president of the Shiromani Akali Dal (Badal) Party (“SAD”) in the state of Punjab (“Gurpreet”), and SAD supporters because he belongs to the opposition party, Indian National Congress party (“INC”), and had refused to join SAD.     

5.  The applicant’s case is that he was a member of INC and had been active in the electioneering and propaganda work for INC as his father used to be the president of INC in his home area.  On the General Election Day in February 2007, when the applicant and a group of INC supporters were on the way to the voting booth, they were intercepted by Gurpreet and SAD supporters, some of whom were armed with guns. The SAD supporters threatened the INC supporters and told them to get on the SAD bus. When the applicant intervened and refused to support SAD, the SAD supporters punched and kicked him for some minutes until police officers came to intervene. The applicant sustained wounds and bruises all over his body, and suffered a fracture in his left hand. He had surgery on his hand and was hospitalized for one week. The applicant did not report the attack to the police because he believed Gurpreet had a close relationship with the police. After the incident, the applicant left home to live initially in Himachal Pradesh and later in Jammu and Kashmir after he saw Gurpreet and his people from a distance in the end of 2009.  During the four years he lived away from home, Gurpreet regularly sent people to his home to look for the applicant and send threats to kill him.    

6.  By a Notice of Decision dated 25 October 2016, the Director rejected the applicant’s claim, having considered torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].    

7.  The applicant appealed to the Board. An oral hearing was held on 24 June 2017.  By its decision of 31 July 2017, the Board rejected the applicant’s claim and dismissed his appeal. It was noted in the decision (at [34]) that the applicant declined to answer questions, as a result of which the Board was unable to have his explanations on some aspects of his claim. The Board was of the view that the applicant’s claim was not credible, and that, even if it was to be believed, it did not amount to a real risk of the applicant being subjected to any of the harm falling under the torture, BOR 3, BOR 2 or persecution grounds.  

8.  The applicant filed his Form 86 together with an affirmation in support on 21 August 2017.  The following grounds were advanced in support of the application:

(1) The Board failed to carry out sufficient research into the country of origin information (COI) and had cherry-picked the COI to support its decision.

(2) The Board failed to consider the applicant’s submission about police corruption and their unwillingness to help him unless he paid a bribe. The COI did not reflect the real situation in India.

(3) The Board failed to consider the concept of extended State acquiescence, and the existence in India of a consistent pattern of gross, flagrant human rights abuses.

(4) It was unfair for the Director to refuse his claim on BOR 2 risk ground without conducting any interview or consideration of further facts.

9.  The applicant also stated in his affirmation that his enemies had made false criminal reports against him so that the police were looking for him, and also that his enemies had tortured his family.    

10.  Pursuant to the applicant’s request, the Judge held an oral hearing on 19 January 2018. The Judge concluded that the intended judicial review had no realistic prospect of success and refused to grant leave to apply for judicial review. She gave her reasons at [10] to [16] of Form CALL-1 dated 7 June 2018:

“10. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault; he [analysed] the evidence and claim carefully. He gave full reasons for his decision and findings. The [applicant’s] grounds and complaints are not made out. I find no substance in the grounds of this application; they are not substantiated.

11. The applicant’s supporting affirmation accuses the adjudicator of procedural impropriety and making errors of law. In the first ground he accuses the adjudicator of failing to carry out sufficient research into the Country of Origin (“COI”) information and cherry picking from that information to support his decision. He failed to consider the applicant’s submission of corrupt police and their unwillingness to help him without being paid a bribe. The applicant submits that real-life in India does not mirror the COI information. In the second ground he accuses the adjudicator of making an error in law, failing to consider the concept of extended State acquiescence. He also failed to consider whether there was a consistent pattern of gross, flagrant human rights abuses.

12. There are no merits in the above grounds. The adjudicator did not actually consider any COI information in light of his finding that the applicant was not a genuine claimant and his evidence was not credible. Whether or not the applicant reported the assault to the police required an explanation that was not forthcoming. In his evidence to the Director he had said he did not report the assault to the police and then contradicted himself later. In view of the adjudicator’s findings there was no need for him to consider State acquiescence or whether there was a pattern of human rights abuses in India that affected the applicant personally.

13. There is another ground which is directed at the Director when he is not a proposed respondent. The applicant submits it was unfair that his BOR 2 risk claim was refused without any interview or consideration of his further facts and grounds. During the oral hearing the applicant told this court that he did not receive any letter inviting him to submit information to support a BOR 2 claim. However, this ground and information is misleading when his BOR 2 risk claim was considered by the Director at the same time as the other grounds and all were rejected on the same date. There was no separate consideration of a BOR 2 risk claim.

14. The applicant attempts to submit new evidence in his affirmation which was not considered by the adjudicator. He says that he has been dragged into false criminal cases by his enemies and the police are looking for him. There are no further particulars and in any event, new evidence is not to be considered in an application of this nature. The applicant said during the hearing that his enemies were still looking for him, his life was still in danger and they were torturing his family. He needed more time to solve his problems. This allegation that his enemies were torturing his family is new and was not considered by the adjudicator.

15. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

16. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

11.  The 14-day period[5] for the applicant to appeal against the Judge’s decision expired on 21 June 2018.  On 22 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 the present case, the applicant was late by one day. It is not a serious delay. The applicant explained in his affirmation and written submissions that it was because he cannot read and write English and was not aware of the time limit that he failed to lodge the appeal within the time limit. We are prepared to accept the explanation.

14.  We turn to assess the prospect of success 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 ground for his intended appeal.  He only stated in his written submission that he could not go back to India because his life would be in danger there. It was said that he was an active member of INC and due to his popularity in his home area, the SAD people wanted to get rid of him and had attacked him. He also reiterated that his enemies were powerful with the police working for them, so he had nowhere to hide. He asked to remain in Hong Kong until his problem was solved.    

16.  None of the above matters put forward by the applicant constitutes proper grounds of appeal.  The applicant has not identified any error in the Judge’s rejection of the grounds for his intended judicial review or in the Judge’s conclusion that the intended judicial review was not reasonably arguable. There is no basis for this Court to interfere with the Judge’s decision.     

17.  The applicant’s 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 the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.