RE BAL SWARAN SINGH

CAMP 454/2021

[2022] HKCA 1520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 454 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2573 OF 2018)

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J U D G M E N T

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

1.  On 23 January 2020, DHCJ K.W. Lung (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  On 8 June 2020, the applicant took out a summons to apply for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 5 July 2021. 

3.  On 12 October 2021, the applicant filed a summons in CAMP 454/2021 (“the Summons”)  in the Court of Appeal applying to this court for extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 12 October 2021, the applicant lodged his written submissions on 26 October 2021.  

5.  Under Order 59 r.14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is an Indian national.  He came to Hong Kong on 16 January 2014 as a visitor and was permitted to stay until 30 January 2014.  However, he did not leave and had overstayed since 31 January 2014.  On 6 March 2014, he surrendered himself to the Immigration Department and lodged a non-refoulement claim alleging that if refouled, he would be harmed or even killed by P.P. Choudhary (“PPC”), a Minister belonging to the Bhartiya Janta Party (“BJP”)  as he was involved in a fatal car accident in India which, the applicant heard by multiple hearsay, caused the death of PPC’s son and nephew.  The applicant’s vehicle had stopped on the road after hitting a deer, and a car with two unknown passengers then rammed into the back of his vehicle.  The factual background of this case was succinctly summarised by the Judge at [8] of the JR Decision ([2020] HKCFI 247).

7.  By a Notice of Decision dated 27 February 2015 (“Director’s 1^st Decision”)  and a Notice of Further Decision dated 24 May 2017 (“Director’s 2^nd Decision”), the Director of Immigration (“the Director”)  had decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4]. 

8.  On 10 March 2015, the applicant appealed the Director’s 1^st Decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”)  and attended an oral hearing on 23 May 2016.  By its decision dated 12 April 2017 (“the Board’s 1^st Decision”), the Board dismissed the appeal and confirmed the Director’s 1^st Decision.  For the reasons set out at [18] to [29], the Board found that the applicant was not a reliable witness and that there was no factual evidence to support his claim.  His evidence was based on multiple hearsay and his claim was based on his own speculation.  There was no evidence that the deceased in the car accident were PPC’s son and nephew.  The applicant’s credibility was further undermined as he did not seek non-refoulement protection at the first available opportunity when he came to Hong Kong.  In any event, relevant country of origin information (“COI”)  suggested there is reasonable state protection as there are reforms in the legal system and the police to protect people better.  Internal relocation is a viable option as he had safely stayed in other places for more than 1 month before leaving India, and there is no evidence that the applicant was being pursued in India [34] – [36].  For the aforesaid reasons, his non-refoulement claim was rejected on the grounds of BOR 3 risk, torture risk and persecution risk.

9.  By the Board’s decision dated 19 October 2018 (“the Board’s 2^nd Decision”), it was found that the applicant had provided no material in support of his claim for BOR 2 risk and for the reasons stated in the Board’s 1^st Decision, his appeal against the Director’s 2^nd Decision was also rejected.

Application for leave to start judicial review

10.  On 15 November 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decisions.  In his supporting affirmation, he advanced the following grounds for relief:

(1)  He was not legally represented for his appeal.

(2)  The Board relied on the source of news which is not officially recognized and cases which were outdated to speculate that it would be safe for him to return to India.

(3)  He was not interviewed on his claim relating to BOR 2 risk and he did not have the chance of expressing his views.

The JR Decision

11.  The applicant was absent at a hearing fixed for 15 May 2019, as a result of which his application was dismissed in an order of the same date (“the May order”).  By a summons dated 10 June 2019, the applicant applied for extension of time for an appeal against the said order. His summons was heard on 17 July 2019. The Judge noted that the envelope containing the notice of the May hearing had been marked as containing an incomplete address.  The Judge therefore set aside the May order, and proceeded to consider his application for leave to apply for judicial review.

12.  After due consideration of the Director’s and the Board’s decisions, the Judge refused his application for leave to apply for judicial review for reasons set out in [17] - [24] of the JR Decision:

“17.  The applicant appeared before me. He confirmed that he was able to speak freely and tell his stories fully before the Adjudicator. He considered that he had had a fair hearing before the Board.

18.  The Court of Appeal held in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 that he has no absolute right of free legal representation at every stage of the proceedings. It would be sufficient if he was provided with legal representation at the screening stage. Ground (1)  fails.

19.  The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 §14 held that the primary decision makers are the Director and the Board and the Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

20.  It is quite clear that the Board had rejected the facts in support of his claim. There is no factual basis for his claim.

21.  Ground (2)  is only bare allegation. He has not set out what news or cases which would cause prejudice to his case. The Board did not rely upon these materials to determine whether his evidence as credible.

22.  The Director had requested the applicant to give additional information for the assessment of BOR 2 risk in his letter dated 5 May 2017. But he did not give any further information to the Director. They Director was entitled to make the assessment without an interview.

23.  Under section 12 of Schedule 1A of the Ordinance, it is within the Adjudicator’s discretion that the Board may determine an appeal without hearing, having regard to the material before it and the nature of the issues raised, if it is satisfied that the appeal can be justly determined without a hearing. Since the applicant had not given additional information, it is reasonable to form the view that no hearing should be required for its assessment of his BOR 2 risk. Ground (3)  fails.

24.  The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 8 June 2020 for an extension of time to appeal.  That was dismissed by the Judge on 5 July 2021.  Hence, the Summons to this court.

Discussion

14.  In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

15.  As for (1), the applicant was late by 4 months between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

16.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation filed on 8 June 2020 that he received the court’s letter enclosing the JR Decision late, and he did not understand court procedures.  He further claimed that he had no money to get legal representation and he had to obtain his friend’s advice. 

17.  The court file showed that the applicant had failed to update his address with the Court and the court letter dated 23 January 2020 enclosing the JR Decision was returned as undelivered post. 

18.  It is the duty of a litigant to provide the Court with an up-dated address so that relevant notification can be given to him effectively and in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [31].  Further, ignorance of law and lack of legal representation did not provide a reasonable excuse for the substantial delay.  As such, we do not see any good reason for the applicant’s substantial delay.  

19.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any valid ground for his intended appeal and only stated in his supporting affirmation filed on 8 June 2020 that the immigration officer and the adjudicator were ignorant of the real situations in India and they should visit India to understand the situation themselves.  He claimed that he was only lucky to have escaped from India and that he wishes to settle in Hong Kong.

20.  In the Summons and supporting affirmation filed in this Court, the applicant failed to provide any valid ground of appeal against the JR Decision.

21.  In his written submissions, he quoted passages from ST v Director of Immigration[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and submitted that “high standards of fairness” applied to the determination of a non-refoulement claim.  He also complained that the Board had failed to scrutinize the Director’s decision and that it is a general practice of the Board not to question or find fault with the decision made by the Director.  He stated that the decision-maker is under a duty to act fairly.

22.  It is clear from the Board’s decisions that the applicant’s case was rejected as it lacked factual evidence in support of his claim, and his evidence was either based on multiple hearsay or was his own speculation. His credibility was further undermined as he did not seek non-refoulement protection at the first available opportunity when he came to Hong Kong.  It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.

23.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.  

24.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 12 October 2021.