RE HARWINDER SINGH

CAMP 203/2020

[2022] HKCA 372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 203 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1023 OF 2017)

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R E A S O N S   F O R   J U D G M E N T

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

1.  At the applicant’s request filed in court on 3 November 2021, his application was dismissed on 12 November 2021. The court indicated that reasons for dismissal of the application in any event would be handed down in due course. These are the reasons.

2.  On 2 July 2020, Campbell-Moffat J (“the Judge”) refused to give the applicant leave 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.  The deadline was therefore 16 July 2020. 

3.  The applicant filed a summons in the Court of First Instance on 17 July 2020 (1 day late) for extension of time to appeal.  That summons was dismissed by the Judge on 8 October 2020. 

4.  On 2 November 2020, the applicant filed his summons in CAMP 203/2020 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  In compliance with the directions made by the Registrar of Civil Appeals on 28 December 2020, the applicant filed his written submissions on 1 February 2021.

Background

6.  The brief background according to the applicant is as follows.  The applicant is an Indian national.  His claim arose out of a dispute with his uncle Didar Singh (“DS”) over land owned by the applicant’s father. His father disappeared, and the applicant’s family were left impecunious with no means of income and had to live on the largesse of relatives.  In 2006, the applicant and his mother asked DS to pay rent or give up the land.  DS assaulted the applicant by slapping him twice but did not hurt the applicant’s mother.  As it was a private matter, the applicant did not report the incident to the police.  The applicant was scared and left India for Malaysia to live with a relative for 2 years.  He then returned to India and between 2009 and 2013, lived at home.   Nothing eventful occurred during that time.  However, in 2013, the applicant met his cousin and three men who, without warning, attacked him with choppers when he asked for the return of his land.  The applicant did not sustain any serious injury.  After that incident, the applicant went to Dubai and stayed with his sister for another 2 years. In 2016, he returned to India.  Upon his return, he asked DS for the return of his father’s land but DS refused.  When he was on his way to report the matter to the police, he was assaulted by his cousin together with three to four men armed with choppers, wooden sticks and baseball bats.  He was sent to the hospital and discharged with ointment and painkillers.  He reported the matter to the police but no follow up action was taken.  A few days later, the same group of people, carrying the same weapons as before, issued verbal threats at him and ran after him.  Worried for his safety, he left India and flew to China.

7.  The applicant entered Hong Kong illegally on 13 September 2016.  He was arrested by the police and on 9 November 2016 was convicted of illegally remaining and obstructing an officer of the Immigration Department and given 15 months’ imprisonment.  The applicant submitted a non-refoulement claim by way of written representation on 23 January 2017 on the basis that if he were to return to India, he would be harmed or even killed by DS and his people over the land dispute.

8.  By a Notice of Decision made by the Director of Immigration (“the Director”) dated 16 August 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

9.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 17 November 2017.   By its decision dated 24 November 2017, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [48] to [60], the Board rejected the applicant’s claim on the issue of credibility, finding that the applicant had fabricated his story for the purpose of his claim.  However, even on his own evidence, the dispute was private and there was no state involvement or acquiescence.  The Board did not find that the applicant had suffered any injury of the requisite severity and rejected his allegation that he had a well-founded fear of being persecuted, tortured or harmed if refouled.   For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.  

Application for leave to start judicial review

10.  On 6 December 2017, the applicant filed a Form No. 86 together with a supporting affirmation to apply for leave to judicially review the Board’s decision but he did not provide any grounds for relief.

The JR Decision

11.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  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 leave to apply for judicial review for reasons and conclusions set out in [10] - [12] of the JR Decision:

“Grounds of review

10.     There were no grounds of review.  The applicant merely states that it was unfair and unreasonable.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.     Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

12.     In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 17 July 2020 for extension of time to appeal.  That was dismissed by the Judge on 8 October 2020.  Hence, the summons to this court. 

Discussion

13.  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).  As for (1), the applicant was late by 1 day, so the delay is minimal.   

14.  As for (2), the reasons for the delay, the applicant did not offer any explanation to the Judge.  In his summons and supporting affirmation for the present application, he said that the court order and the JR Decision were lost in the post and he only received the same by searching the court file.  There was no evidence suggesting the mail did not reach the applicant’s address. 

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision, and the Judge found no realistic prospect of success in the intended appeal and thus refused leave.

16.  In his summons and supporting affirmation for the present application before this Court, he did not provide any ground to reverse the JR Decision.  In his written submission, he merely said that he could not return to India as he would face a threat to his life from his uncle and urged this Court to allow his application.   

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

18.  As the intended appeal is unarguable, in any event it would have been futile to extend the time to appeal.  Accordingly, we would have dismissed the applicant’s summons filed on 2 November 2020 in any event.