ONG SIU SIN KEVIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 250/2020

[2021] HKCA 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 250 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 33 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 11 December 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 27 July 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal had ended on 27 December 2019.  The application was dismissed by the judge on 1 December 2020[2].

3.  On 22 December 2020, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge dated 11 December 2019.

4.  The applicant is a national of Singapore.  He is 51 years old.  He arrived in Hong Kong on 13 October 2001 as a visitor.  He subsequently married a Hong Kong resident and was then permitted to remain as a dependant until their divorce in 2008.  Later, he was convicted and sentenced to imprisonment of 4 years and 6 months for fraud.  Upon his release from prison, a deportation order was issued against him on 27 August 2014.  He raised a non-refoulement claim on 9 September 2014. His claim was made on the basis that if he returns to Singapore he will be harmed or killed by his cousin who was said to be an Assistant Director of Prosecutions for trying to expose a crime committed by his cousin of having stolen millions of dollars from his grandmother’s account.

The Director’s decisions

5.  As the applicant repeatedly failed to attend the interviews and to submit the supporting documents which he indicated that he intended to submit, and he also failed to complete the question sheets as requested by the immigration officer after being given reasonable time and opportunities, the Director decided to assess the applicant’s claim based on the available information.  By a Notice of Decision dated 9 December 2015, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

6.  Upon the Director’s invitation to submit additional facts which may be relevant to the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk[6], the applicant provided additional facts relating to his claim.  He attended an interview on 7 November 2016.  By a Notice of Further Decision dated 18 November 2016, the Director rejected the applicant’s claim on all applicable grounds.

The Board’s decision

7.  The applicant appealed against the Director’s decisions to the Board.  He attended the hearing before the Board with his duty lawyer on 27 January 2017.  The Board considered that the applicant’s entire case rests on his bare assertions without any cogent evidence in support and the applicant is lacking in credibility.  The Board further held that even if the applicant’s evidence is assumed to be true, the injuries he claimed to have suffered were not of the degree of severity required to establish a non‑refoulement claim.  Moreover, the Board also found there is reasonable state protection in Singapore and the fundamental rights of citizens are protected by the law. Therefore, the appeal was dismissed by the Board on 26 October 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 8 January 2018 for leave to apply for judicial review against the decisions of the Director and the Board.  He put forward the following grounds for his intended challenge:   

(1)  The decision of the Board is unjust as it failed to take into consideration that the applicant does not have his passport nor is he able to obtain a new passport to prove his identity and obtain crucial documentary evidence to prove his claim;

(2)  As such the applicant had from the very beginning been put in a position where his torture claim and subsequent appeal would be insurmountable and impossible to achieve success. [sic]  

The judge’s decision

9.  DHCJ Bruno Chan considered the application on the papers as the applicant did not request for an oral hearing.

10.  In relation to ground (1), the judge pointed out that the Board had duly considered the applicant’s submissions and made findings against his credibility.  The judge also noted that the applicant was legally represented during his appeal before the Board and that the applicant claimed to be a law graduate with different types of work experience. Hence, it is not reasonably arguable that his failure to produce any documentary evidence in support of his claim was due to the fact that he did not have his passport to prove his identity after being given ample time and opportunities.  The applicant failed to adduce any evidence of any attempts by him or his lawyer regarding the application for the relevant documents. 

11.  The judge rejected ground (2) as it is just a bare and vague assertion without any particulars, specifics or elaboration and the applicant had had legal representation throughout the process before the Director and the Board.  The judge reviewed the decisions of the Director and the Board and did not find any error of law or procedural unfairness in them, or any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  Thus, the judge dismissed the leave application on 11 December 2019.

Grounds of intended appeal

12.  The applicant stated his grounds of appeal in the exhibit to his supporting affirmation which may be summarized as follows:

(1)  The applicant does not possess his Singaporean passport and is unable to get it replaced, thus causing him to be unable to obtain the necessary documentary proof required to succeed in his case.  It has been impossible to obtain the needed documentary proof due to the privacy laws of Singapore and the prevention against fraud measures.  The Board and the judge failed to see the practicality of issues at hand;

(2)  The duty lawyer who had represented the applicant had never assisted the applicant in writing to the various parties for obtaining the required proof;

(3)  The applicant had not refused to answer the questionnaires sent to him and had in fact answered every questionnaire that the solicitor had put before him and they were all duly returned to the best of his knowledge;

(4)  The applicant did not know he has the right to make a request for an oral hearing;

(5)  In light of the judgment, should an extension of time to appeal be given to the applicant, he would certainly write to the various departments and obtain documentary proof from all the necessary departments via his solicitors to prove to the court that he is unable to obtain such documentary evidence because he does not have a valid passport.

13.  These were the same grounds he put forward to the court below after the hearing of 8 October 2020 by way of letter, which had been duly considered and rejected by the judge[7].

Analysis and disposition

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 11 December 2019.  The applicant took out a summons at the court below on 27 July 2020.  He was late by seven months.  The delay is substantial.

16.  The applicant explained to the court below that he did not receive the court’s decision and hence was not aware of it until July 2020.  The decision was sent to the applicant’s address on 11 December 2019 and the applicant claimed that he resided at that address during the material time and only moved to a new address in March 2020.  As a matter of fact, the mail was eventually returned to the court by the post office[8].  Even if the court is minded to accept the applicant’s explanation for the delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[9].

17.  The ground pertaining to the impracticality of obtaining the necessary documentary evidence due to the lack of passport is not supported by any credible evidence.  After being criticized by the Board for not obtaining some documents such as medical records through his solicitors and criticized by the judge back in December 2019 for not even producing any evidence of any attempts by him or his lawyer such as requesting letters to various authorities or government departments of Singapore, the applicant has still not adduced any evidence of any such attempts but only stated that he would certainly write to the various departments to obtain documentary proof via his solicitors to prove to the court that he is unable to obtain such documentary evidence should an extension of time to appeal be given to him.  He has not provided any explanation why he could not have done so before or at the time of taking out the present application.  This ground is unmeritorious.

18.  The rest of his grounds are just bare assertions which do not assist him in demonstrating any reasonably arguable basis that the judge was wrong in refusing his leave application.

19.  For the above reasons, we do not consider there is any prospect of success in his intended appeal. We refuse to grant extension of time to appeal against the judge’s decision of 11 December 2019 and dismiss the summons filed on 22 December 2020.

[1] [2019] HKCFI 2481

[2] [2020] HKCFI 2896

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] See §6 [2020] HKCFI 2896

[8] Contrary to what was stated by the judge in §5 of his judgment dated 1 December 2020, [2020] HKCFI 2896

[9] Re Gurung Min Bahadur [2018] HKCA 226 §10