RE BITTU SINGH

CAMP 87/2019

[2020] HKCA 997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 87 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 201/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 20 March 2018 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 7 April 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 24 June 2016 and 26 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 8 May 2014 and was permitted to remain until 22 May 2014.  He surrendered to the authorities on 31 May 2014.  He lodged a non-refoulement claim on 2 June 2014. 

3.  The applicant’s claim was based on threats from the family of a girl he was seeing. The details of the applicant’s claim have been summarised by the judge at [2] to [8] of the CALL-1 form[1].

4.  By a Notice of Decision dated 24 June 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  By a Notice of Further Decision dated 26 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[5], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 28 February 2017, the Board dismissed the appeal on 7 April 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [31] – [34] of the Board’s Decision, the Board found that there were significant concerns regarding the credibility and reliability of the applicant’s evidence.  The Board was also satisfied at [18] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 11 May 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 11 May 2017, the applicant deposed that:

“ I am here to apply for a leave to apply for judicial review. As Country of Origin Information (COI) report issued by UK Home Office was mentioned, it says it all in there. I do have a torture risk back in India due to my race. BOR 3 risk also applies in my case as well as BOR 2 risk, i.e. risk to my life. I hereby apply for leave to judicial review against the decision of the torture claims appeal board dated 7 April 2017 (Ex 1), and the immigration officer’s decision dated 24 June 2016 (Ex 2) refusing my claim for non-refoulement protection claim.”

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [15] to [20] of the CALL-1 form:

“15.     Whilst it is not entirely clear which COI report issued by UK Home Office referred to by the applicant above which he said would go to support his claim that he does have a torture risk as well as both BOR 2 and BOR 3 risks if he is to return to India, but the Director did in paragraph 20 of his decision refer quite comprehensively to several COI reports issued by UK Home Office, starting with one which the Director accepted that may corroborate the applicant’s assertion on political influence on as well as corruption and incompetence of Indian police as follows:

‘i. According to the Human Rights Law Network (HRLN) report of August 2009, ‘Almost all state police commissions and the National Police Commissions have found misuse by politicians for partisan ends. Police officers feel compelled to comply with illegitimate political directives because they know that disobedience might lead to their transfer to a different post. The police are generally heavily dependent on the executive for appointments, disciplinary measures, salaries, tenure, physical conditions, residency transfers, and the like. Thus, not only is the police force politicized, but it adopts the positions of those currently in power to the detriment of political minorities, poor persons, scheduled castes and tribes, and the generally disempowered.’ The above is quoted from paragraph 9.10 on p. 39 of the ‘India Country of Origin Information (COI) Report’ issued by the UK Home Office on 30 March 2012 (item 1 of Appendix).’

16.     The Director then went on to also consider other COI reports which shows that reasonable state protection is available in India and that the country is striving against corruption with alternative avenues to seek justice in the country, including the following one issued by the UK Home Office:

‘iv. In its ‘Country Information and Guidance—India: Background information, including actors of protection, and internal relocation’ (item 3 of Appendix), UK Home Office stated in paragraph 2.7.10 on p. 15 that ‘State police forces are structured and regulated by the Police Act of 1861, or by state statutes that are modified after the 1861 Act. This Act also sets out the duties to be discharged by police officers.’ Together with paragraph 20(4)(i), it shows that a well established police system is in place in India.

v. Referring to paragraph 2.7.27 on p. 20 of the above report of UK Home Office (item 3 of Appendix), ‘A victim of police misconduct can also make a report to the National Human Rights Commission (NHRC).’ ‘In addition to the NHRC, 23 states and union territories have Human Rights Commissions with remits in those particular states.’

vi. UK Home Office also stated in paragraph 2.10.4 on p. 29 and 30 of the above report (item 3 of Appendix) that ‘In December 2013, Parliament passed the Lokpal and Lokayuktas Bill, establishing an ombudsman organization (the Lokpal) to investigate allegations of government corruption. The Bill was first tabled in parliament in December 2011 following massive public protests against official corruption. The Lokpal has the power to investigate alleged offences by any public servant, including government employees, judges, MPs, Ministers, and the Prime Minister. Victimizing a whistleblower or witness has become an offence. Following an investigation, the Lokpal can initiate prosecution in a Special court formed under the Prevention of Corruption Act, 1988. The Lokpal and Lokayuktas Act, 2013 entered into force on 1 January 2014.’ The above clearly demonstrates the dedication of the Indian government to combat against corruption.’

17.     In paragraph 21 of his decision, the Director also took into consideration of, inter alia, the same report of the UK Home Office to arrive at his assessment that internal relocation alternatives are available and reasonable in the applicant’s case:

‘(3) In its ‘Country Information and Guidance—India: Background information, including actors of protection, and internal relocation’ published in February 2015 (item 3 of Appendix), UK Home Office stated on p. 5 in paragraph 1.2.8 that ‘In the Country Guidance case of MD India CG [2014] UKUT 00065 (IAC) (12 February 2014), the Upper Tribunal, when considering whether a same sex orientated male who may be at risk of harm from his family could be expected to relocate, held that ‘India is a country of 1.2 billion people and we have not been drawn to any evidence that there is a central registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or unions within the country. We consider the possibility of the police, or any other person or body, being able to locate, at the behest of an individual’s family, a person who has fled to another state or union in India, to be remote.’ In other words, even the Indian police would find it difficult to locate someone who had internally relocated to a different area within India. Moreover, as assessed in paragraph 19, there is nothing to show that VK’s family is resourceful enough and has the intention to search for you throughout your country.’

18.     As for both BOR 3 risk and BOR 2 risk, it is clear that the Director did also carefully consider and assess the applicant’s claim and was perfectly entitled to find that he has failed to establish that he would face a genuine and substantial risk within the definition of either BOR 3 or BOR 2.

19.     Similarly it is clear to me that the Board has also relied on its objective COI reports listed and set out in its decision in reaching its conclusion that the applicant has failed to establish a case of non-refoulement whether under risks of torture or BOR 3 or BOR 2, and in the absence of any particulars or specifics from the applicant as to what error in law or procedural unfairness that the Board has made in its decision, neither do I see, in the light of the materials before me, any error of law or procedure in the proceedings before the Board, or any reasonably arguable basis for the applicant to challenge the fairness of the process.

20.     For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

Application for extension of time to appeal and grounds for appeal

12.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 21 December 2018, the applicant sought leave to appeal out of time.  The application was some 9 months out of time, which is a substantial delay.  His application was dismissed by DHCJ Bruno Chan on 26 March 2019.

13.  By a summons dated 10 May 2019 (also beyond the time limit of 14 days for making a renewed application to this court), the applicant renewed his application for an extension of time to appeal before this court.  In the summons, he merely asked for leave to appeal without giving any grounds of appeal.

14.  In the affirmation dated 10 May 2019, the applicant deposed that “I seek leave to file appeal out of appeal as it is unreasonable to dismiss my application for judicial review under the decision [of the judge]”.

15.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 31 May 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

17.  The applicant did not provide any explanation for his substantial delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

18.  The only ground of appeal raised in the affirmation dated 10 May 2019 is that it was “unreasonable” for the judge to refuse leave.  He did not provide any basis or particulars for this assertion and this ground is therefore bound to fail.  In any event, having examined the judge’s decision, we can see no error in it.

19.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 10 May 2019 is dismissed accordingly.

20.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.