JOSHI MULAME KARAM SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 138/2024, [2024] HKCA 971

On An Intended Appeal From [2023] HKCFI 131 &

[2024] HKCFI 1615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 138 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 2 OF 2019)

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J U D G M E N T

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

1.  On 25 July 2024, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 26 June 2024 refusing to grant him an extension of time to appeal against the Judge’s earlier order dated 26 January 2023 (“the Order”)  refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 19 December 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 26 February 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of India.  He arrived in Hong Kong from Mainland China with an Indian passport on 28 January 2016, but was refused entry and removed from Hong Kong on the same day.  Subsequently, he entered Hong Kong illegally on 4 February 2016 and surrendered himself to the Immigration Department on the following day.  On 17 June 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by Raman Singala, who was connected with the Shiromani Akali Dal Party (“SAD”), for causing the death of one of the family members of Raman Singala in a traffic accident.  Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form.

5.  By a Notice of Decision dated 26 February 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board.  On 19 December 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §§9-10 of the CALL-1 Form:

“[8] The applicant appealed the Director’s Decision to the Board. Pursuant to the applicant’s request, on 26 October 2018, his legal representative confirmed to the Board that his appeal could be disposed on paper without an oral hearing [13]. Both parties had submitted the skeleton submissions [14].

[9] Having considered all the evidence, the Board made the following findings. The Board assessed the crux of the applicant’s claim, i.e., the alleged traffic accident. It found that the details of the accident were lacking, such as the extent of injuries sustained by the passengers, the cause of death, and when and how the applicant was chased by Raman. Despite the applicant stated in the grounds of appeal that the screening interview before the Director was rush and with time constraint, the Board found that he failed to seize the opportunity of an oral hearing before the Board to clarify these matters [60].

[10]  Further, the Board found that the applicant’s evidence as to what happened after the traffic accident was inconsistent.  In particular, the applicant contradicted himself as to where he was attacked [61].  Meanwhile, the Board attached little weight to the applicant’s medical records as the injuries recorded therein were different from what the applicant described [62].  As to the newspaper article submitted by the applicant’s legal representative in support of the alleged traffic incident, the Board found that it was implausible that the newspaper would publish the accident on the same date especially when the accident happened in the evening [63].  It was equally illogical that Raman would inform the applicant that he had already located the applicant so as to give the applicant a chance to flee [64].  In addition, the Board rejected the applicant’s claim that Raman and the SAD targeted him because of his abandonment of the SAD membership as there was no evidence to support such assertion [66].”

7.  On 2 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of judicial review was given in the Form 86.  In his supporting affirmation filed on the same date, he merely stated that he was not satisfied with the Board’s Decision, but failed to identify any ground of review. 

THE JUDGE’S DECISION

8.  On 26 January 2023, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[17] The applicant’s legal representative had confirmed that the applicant would not want a hearing for his application. The Board had assessed his case and did not accept his evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

[18] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[19]  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

9.  On 26 January 2023, the decision and the Order were sent to the Applicant’s last reported address without being returned through the undelivered post.  At the Applicant’s request by letters dated 11 October 2023 and 20 February 2024, the decision was again sent to the Applicant on 20 February 2024 at another address provided by the Applicant without being returned through the undelivered post.

10.  On 18 April 2024, the Applicant applied by summons for an extension of time to appeal against the Order.  On 26 June 2024, the Judge refused the application, holding that the Applicant was over 1 month and 12 days out of time (counting from 6 March 2024, being 14-days after the decision was re-sent to the Applicant on 20 February 2024), and that there was no valid reason to challenge the Board’s Decision.

THIS APPLICATION

11.  By a summons taken out on 25 July 2024, the Applicant applied for leave to appeal out of time against the Judge’s order of 26 June 2024 and for leave to advance a new ground of appeal, but without identifying what such ground might be.

12.  In his affirmation filed on the same date, he claims that the Judge’s decision was unfair.  In an 11-page document attached to his affirmation and titled “written submissions”, he repeats the factual basis of his non-refoulement claim.

13.  In his 10-page written submissions lodged on 22 August 2024, the Applicant repeats again the factual basis of his non-refoulement claim.

DISCUSSION

14.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

15.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

16.  The Applicant’s delay is substantial, and he has failed to give any good or valid reason for the delay.

17.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

18.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

19.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

20.  The Applicant has failed to identify or show any arguable error in the Judge’s decision of 26 January 2023, and has failed to raise any viable ground of appeal against the Order.  His general complaint of unfairness in the Judge’s decision is no more than a bare assertion without particulars, and cannot constitute a valid ground of appeal.

21.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

22.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 25 July 2024 is dismissed.