DAVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

CAMP 111/2018

[2018] HKCA 768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 111 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 565 of 2017)

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J U D G M E N T

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

INTRODUCTION

1.  On 19 June 2018, Deputy High Court Judge Woodcock (‘the Judge’) refused to grant the applicant leave to apply for judicial review (‘the Judge’s Decision’) against the Decision of the Torture Claims Appeal Board dated 10 August 2017 (‘the Board’ and ‘the Board’s Decision’).

2.  By a summons dated 13 July 2018, with supporting affirmation, the applicant applies to this Court for an extension of time to appeal against the Judge’s Decision (‘the Summons Application’).

3.  The applicant having failed to lodged any written submissions by 28 August 2018, this Court will, pursuant to the directions of the Registrar of Civil Appeals dated 17 July 2018 and 10 August 2018, deal with the Summons Application on paper.

BACKGROUND

4.  The applicant is an Indian national.  He arrived in Hong Kong on 18 March 2014, and has been overstaying since 2 April 2014.  On 9 April 2014, he put in a torture claim on the basis that, if he were to return to India, he feared he would be harmed and killed by one Sandeep Singh, who supported Shiromani Akali Dal (‘SAD’), whilst he, the applicant, supported the Indian National Congress (‘INC’), the SAD and INC being opposing political parties.

5.  The following is a summary of his alleged case.

6.  The applicant was a farm worker.  He studied for but did not finish his Bachelor of Arts degree in India.  Since all his family were longstanding supporters of the INC he became the president of the INC student union of his college, which put him in constant conflict with Sandeep Singh who was the president of the SAD student union.  The situation was so dire that, on one occasion, the applicant was attacked and seriously injured by Sandeep and his followers.

7.  Sandeep and the applicant also reported each other to the police for alleged wrongdoings.  On these occasions, however, the police would have the applicant incarcerated for up to two days whilst Sandeep had never been subjected to the same treatment.

8.  In or around March 2014, after returning home from hiding to sit for an examination, the applicant travelled to Mainland China and then Hong Kong where he received news from his parents that Sandeep was looking for him to avenge an attack which Sandeep mistakenly believed to have involved the applicant.  The applicant has remained in Hong Kong since that time.

THE DIRECTOR’S DECISION

9.  The Director of Immigration decided against the applicant’s torture claim on 13 April 2017 (‘the Director’ and ‘the Director’s Decision’).  The Director’s Decision covered the applicant’s rights under Article 2 (right to life) and Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights, as well as his other statutory and convention rights against torture and persecution.

THE BOARD’S DECISION

10.  The applicant appealed the Director’s Decision to the Board on 26 April 2017, whose oral hearing was conducted on 14 July 2017.  As said, the Board dismissed the applicant’s appeal on 10 August 2017.

THE JUDGE’S DECISION

11.  The Judge had considered the applicants’ grounds in support of his application for leave to apply for judicial review but found that the applicant had taken his right to free legal representation out of context, believing it to extend beyond what was provided by the duty lawyer scheme. She observed that the duty lawyer scheme would extend the applicant’s legal representation to cover the Board’s hearing if only it considered the applicant’s case to have merits.  The Judge held that there was no merit in the applicant’s complaint that he did not receive any translation of his non-refoulement claim form, stating that the form was completed by the applicant with the help of an interpreter.  The Judge found the applicant to have suffered no prejudice from the Director’s absence at the Board’s hearing.  In any event, the Judge had considered both the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny, but did not find in them any error of law or procedural unfairness, or that the Director and the Board had failed to apply the high standards of fairness in the applicant’s claim, or that their Decisions were Wednesbury unreasonable.

THE SUMMONS APPLICATION

12.  In the applicant’s summons dated 13 July 2018, it was simply stated that there was “a new sole ground of appeal”.

13.  As regards his supporting affirmation, the applicant stated that, because he was a litigant in person, he was unaware of the 14-day time limit for appealing the Judge’s Decision (the ‘In Person Argument’).  He said he had a good ground of appeal but gave no particulars of this ground.  He referred to an exhibit “T-1” but had in fact attached no such exhibit to his affirmation (the ‘Good Ground Argument’).  He repeated that, as he was a litigant in person, he did not understand the appeal procedures; and that, because he was impecunious, he could not afford to pay for any legal advice, thus making it impossible for him to know when to appeal (the ‘Impecuniosity Argument’).

14.  On 20 August 2018, the applicant filed into the Court a change of address notice stating that his address has changed from being in Tuen Mun to To Kwa Wan.

LEGAL PRINCIPLES

15.  In 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), 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]

(a)   Length of the delay;

(b)   Reasons for the delay;

(c)   Prospect of the intended appeal; and

(d)   Prejudice to the putative respondent if extension of time was granted.

ANALYSIS

16.  The deadline for the applicant to lodge his Summons Application was 3 July 2018, ie 14 days from 19 June 2018: RHC O. 53 r. 3(4).  The applicant did not make his application until 13 July 2018.  Such a delay was not insubstantial.

17.  It is trite that ignorance of the law is no defence.  More importantly, it was the Judge’s finding that the applicant did nothing to apply for legal aid until long after he had lodged his application for leave to apply for judicial review.  It was the Judge’s finding that “there was no good reason for the applicant’s tardy application except to delay the hearing by at least 42 days”.  It was the Judge’s view this applicant was “abusing the process”.  The In Person Argument therefore has no merit.

18.  Likewise, the Impecuniosity Argument has no merit. The applicant was aware from the beginning that he was impecunious, yet he did not make haste and early effort to apply for legal aid.  In any event, neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51 of 2007 prescribe that a torture claimant must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14.

19.  The Good Ground Argument has no merit because it was not particularised.

DISPOSAL

20.  In our judgment, it cannot be said that there is any error of law or procedure in the proceedings before the Board or the Judge, or that there is any reasonably arguable basis to challenge the fairness of those proceedings.  The Judge was correct to hold that leave to apply for judicial review should not be granted.  Likewise, there is no merit in the present application for an extension of time to apply for leave to appeal and the Summons Application must be dismissed.