GURPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

CAMP 168/2020

[2021] HKCA 228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 168 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 239 OF 2017)

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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 13 November 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  The applicant filed a summons on 13 January 2020 to apply for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 27 November 2019.  The application was heard by the judge on 20 August 2020 and was dismissed on 16 September 2020[2].

3.  On 17 September 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge's decision of 13 November 2019.

4.  The applicant is a national of India.  He is 30 years old.  He entered Hong Kong illegally on 9 March 2012 and was arrested by the police on 20 October 2012.  He raised a torture claim which was rejected by the Director of Immigration (“the Director”) on 30 August 2013.  He lodged his non-refoulement claim on 23 October 2012 on the basis that he would be ill-treated by people from Shiromani Akali Dal (“SAD”) and arrested by the police due to the false allegation against him if he returns to India.

5.  The applicant was convicted of taking up employment while being a person in respect of whom a removal order is in force and sentenced to 15 months’ imprisonment on 11 December 2015.

The Director’s decision

6.  By a Notice of Decision dated 30 November 2016, the Director rejected the applicant’s claim on BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].  The refusal of his torture claim would not be reviewed under the Unified Screening Mechanism. 

The Board’s decision

7.  The applicant appealed against the Director’s decision to the Board.  The hearing of the appeal was conducted before the Board on 27 March 2017. The Board considered that the applicant fabricated his claims in relation to the death of an SAD supporter during an election-time fight as well as the alleged subsequent interest the SAD and the authorities had in him as key aspects of his claims were fundamentally implausible and his evidence changed significantly over time.  The Board held that there is no real risk of persecution or proscribed harm, or his being subjected to mistreatment or being arbitrarily deprived of life should the applicant return to India. Therefore, the Board dismissed the applicant’s appeal on 11 May 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 25 May 2017 to seek leave to apply for judicial review against the decision of the Board.  The grounds for his intended challenge may be summarized as follows[6]:

(1)  failure to give him any chance to submit additional facts for his claim under BOR 2 risk;

(2)  failure to properly realize and appreciate the current situation and danger that he would face in India;

(3)  wrongful reliance on country of origin information to determine the real situations in India in assessing his claim of risk of harm that he would face in India;

(4)  wrongfully ignoring the overwhelming violence towards the minorities in India in the assessment of his claim;

(5)  wrongfully adopting a biased and formulistic approach in assessing the danger that he would face and in rejecting his claim; and

(6)  his enemies are still looking for him and his family has been under threats from them.

The judge’s decision

9.  The application for leave was considered by DHCJ Bruno Chan on the papers.  The judge held that Ground (1) is clearly factually incorrect and has no basis at all as his claim under BOR 2 risk was considered together with his other claims when he was legally represented.  The judge further decided that the rest of the applicant’s grounds are just broad and vague assertions without any particulars, specifics or elaborations.  The judge assessed that the intended application for judicial review does not have any prospect of success and refused the leave application on 13 November 2019.

Grounds of intended appeal

10.  The applicant stated his intended grounds of appeal in his supporting affirmation and written submissions which may be summarized as follows[7]:

(1)  the court did not provide language assistance to the applicant in ensuring that he understands the content of the judgments so he has been deprived of the opportunity to understand the judgments and to make proper grounds;

(2)  he was not provided with legal assistance so he was not able to understand what he has to say to the court;

(3)  the judge only gave him the opportunity to advance grounds on the spot at the hearing.  This is unfair as he is not good in English and he only got to understand the judgment on the day of hearing so he needed time to consider the points for appeal.  The judge erred in failing to adjourn the matter;

(4)  the judge also failed to take into account the applicant’s unique circumstances as a non-refoulement claimant, his lack of familiarity of the Hong Kong authorities and his lack of language capability in understanding judgments;

(5)  the judge did not notice that the applicant did not have legal representation in his appeal before the Board; and

(6)  there is no other avenue for a non-refoulement claimant to seek an appeal against a decision made purely against credibility and this is procedurally unfair.

Analysis

11.  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.

12.  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 13 November 2019.  The applicant took out a summons at the court below on 13 January 2020.  He was late by more than six weeks.  The delay is substantial. 

13.  The applicant explained that he only received the order a few days before he made the time extension application at the court below.  His explanation is not justified.  The court had sent the judgment to the applicant’s address by post on 13 November 2019[8]. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

14.  Under these circumstances, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  The grounds pertaining to the lack of language and legal assistance are not valid grounds of appeal against the judge’s decision.  An applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[9] and the applicant already had the benefit of legal representation in presenting his case to the Director.  Furthermore, the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658 at §12.  Besides, all court documents including the summonses, affirmations and written submissions filed by the applicant were written in English.  This indicates that either the applicant is himself conversant with the English language or he has access to language assistance of his own if needed. 

18.  The applicant has failed to demonstrate that the judge’s decision was wrong.  He complained that the judge failed to adjourn the hearing to give him more time to consider his points for appeal.  However, up till the present application, he has still failed to give any elaboration or evidence to show that the Board’s decision was wrong as alleged in his leave application.

19.  There is no legal basis for his contention that the inability to challenge by judicial review a decision made against him for lack of credibility is procedurally unfair.

20.  For all the above reasons, the applicant does not have any prospect of success in the intended appeal.  We therefore refuse to grant extension of time to appeal and dismiss the summons filed on 17 September 2020.

[1] [2019] HKCFI 2368

[2] [2020] HKCFI 2258

[3] 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.

[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] See §9 Call-1 & Folio 2 in HCAL

[7] Similar grounds were given in his application for extension of time to appeal in the court below.

[8] The judgment was sent to both the address stated in Form 86 (this copy was returned by the Post Office to the court) and the applicant’s new address as provided by the Immigration Department (this new address is also the address stated in the applicant’s recent affirmations) on 13 November 2019.

[9] Re Paswan Shibu Lal [2018] HKCA 249 at §21