ANMOL SINGH v. MS. BETTY KWAN, ADJUDICATOR (TORTURE CLAIMS APPEAL BOARD) AND ANOTHER

CAMP 3/2018

[2018] HKCA 273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 171 OF 2015)

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J U D G M E N T

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

INTRODUCTION

1.  The applicant is an Indian national, who arrived in Hong Kong on 2 August 2014 from India.  After the applicant was refused permission to land, he lodged a non-refoulement torture claim (“NFC”).  The Director of Immigration (the “Director”) decided against him on 17 October 2014 (“the Decision”).  He appealed to the Torture Claims Appeal Board (“the Board”) on 28 January 2015, the Board dismissed his appeal, rejecting the non-refoulement claims of the applicant on all applicable grounds namely torture risk, BOR 3 risk and persecution risk.  The applicant then applied for leave to judicially review the Board’s decision. 

2.  By a decision dated 5 January 2017, Chan J (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  By a summons dated 5 January 2018, the applicant applied for leave to appeal against Chan J’s order.

3.  We consider it is appropriate to determine the application without a hearing on the basis of the applicant’s written submissions only, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.

Factual Background

4.  The applicant’s claim is based on his fear that if he were to return to India, he would be harmed or even killed by people of the political party Shiromani Akali Dal (“SAD”) over a land dispute and political disputes.  The applicant’s case in gist is that he and his family had been supporters of the Congress Party and the applicant started to participate in the activities of the Congress Party in February 2014. The applicant’s grandfather was a farmer and owned a piece of land (“the Farmland”) for farming. The applicant claimed that his grandfather made a will to transfer the Farmland to him.   It is the applicant’s case that he was beaten up with rifles and wooden sticks, fists and kicks by a Gurmeet Singh (“Gurmeet”) and a Dayal Singh (“Dayal”) on numerous occasions, both of whom are supporters of SAD and owners of land next to the Farmland. The applicant claims that Gurmeet illegally occupied and tried to take over the Farmland while Dayal forced him to join SAD.  As a result of the attacks, the applicant suffered injuries to his neck and face.  He was treated in hospital and discharged shortly. He further claimed that his grandfather and elder brother were also attacked by Gurmeet and the grandfather suffered a fatal heart attack when he heard that the applicant’s brother was found to be missing after the attack.

5.  The applicant claimed that he had reported the matter to the police but the police refused to accept the case and threatened to put a false case against the applicant if he made further complaints.

6.  On the last attack in or about July 2014 before the applicant’s fled, he was threatened and forced to sign documents to give the Farmland to Gurmeet and was beaten up until losing his consciousness.  The applicant’s mother told him to escape or he would be killed.  The applicant went to his maternal aunt’s home in Mannan village which is approximately 30 km away from his home.  The applicant was located by Gurmeet three days after his escape, so he ran away again and tried to stay in a friend’s house in Bundala which was about 2 hours by bus but he was turned away.  The applicant finally decided to leave India and go to Hong Kong.

7.  On 2 August 2014, the applicant arrived at Hong Kong International Airport and was refused permission to enter Hong Kong.  He then sought for protection and lodged NFC.  The applicant claimed that relocation in India was not a viable option because Gurmeet and the SAD people could easily locate him as they have strong connections with the police.  The applicant also claims that it is very difficult to survive in big cities in India as the Indian government will not offer any protection and assistance for a person from other cities.

The Intended Judicial Review

8.  The applicant’s Form 86 filed on 21 August 2015 set out five main grounds of appeal namely :

(i)   State Acquiescence.

(ii)   Abundance of Country of Origin Information (“COI”) contrary to the decision makers’ conclusion.

(iii)   Insufficient enquiry.

(iv)   Wednesbury unreasonableness and procedural unfairness.

(v)   Failing to advise the applicant to obtain medical reports.

9.  The Judge, after considering the documents, dismissed the application for leave to apply for judicial review.

Discussion

10.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal against the Judge’s refusal of leave to apply for judicial review.  This expired on 20 January 2017.  It was not until 5 January 2018, that the applicant took out the present summons seeking leave to appeal out of time.

11.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (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 extension of time was granted : see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016).

12.  In this case, the applicant was late by almost one year.  It is a substantial delay.  In the affirmation of the applicant of 5 January 2018, the applicant alleged that since around mid-2016, he had been “actively reaching out” to his solicitor asking for progress of his case.  He had made personal enquiries with the High Court and was told that all correspondences had been sent to his solicitor.  He then approached his solicitor and was informed there was no arrangements of an oral hearing.  On this basis, he did not make further enquiries.  He only found out in around December 2017 that an order was made by the Judge on 5 January 2017 dismissing his application.  He claimed that the mistake was owing to miscommunication and potential case management default on the part of his solicitor.  He further claimed that he has changed address about one year ago that caused him failed to receive any correspondence and documents from the court.

13.  We do not find the applicant’s explanation to be reasonable or satisfactory.  We note that by Notice of Hearing of HCAL 171/2015, the hearing for leave to apply for judicial review was initially fixed for 8 November 2016.  The solicitors for the applicant Messrs. M.C.A. Lai & Co. (“MCA Lai”) wrote to court to apply for adjournment, pending the decision of the Director of Legal Aid as the applicant’s certificate might be discharged.  As per the Directions of the Judge made on 4 November 2016, the hearing was adjourned to 5 January 2017.  On 4 January 2017 (one day before the hearing), MCA Lai wrote to inform the court that the legal aid certificate of the applicant was discharged.  In this circumstances, it is incredible that MCA Lai would have missed the hearing date or failed to inform the applicant that his legal aid certificate was discharged and the hearing was fixed for 5 January 2017.  Besides, the applicant also failed to provide any particulars or documentary evidence to support his allegations.  All these rendered the applicant’s account implausible.  Last but not least, if the applicant has changed his address, he had the duty to inform the court in a timely manner and the consequences such failure would fall on the shoulders of the applicant.

14.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal : see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016.

15.  We turn to assess the prospect of the applicant’s intended appeal.  The applicant did not set out any ground of appeal in his summons and affirmation.  In his written submission filed to this Court on 11 April 2018, the applicant just repeated his story on the matter of delay.  In this case, we will take the grounds of appeal (see [8] of this Judgment) as set out in Form 86 in considering the applicant’s case.

16.  By Ground 1, the applicant complained that the Director/the Board failed to appreciate the presence of state acquiescence.  As explained in [17] – [18] of the Decision, the reason of enmity between the applicant and Gurmeet was personal and private in nature and had nothing to do with the interest of Indian authorities. Although there are COI indicating that Indian police are corrupt and have been found to have been misused by politicians for partisan ends, there are objective COI showing that (i) structured police forces are in place and reforms have been made and are on-going with positive results; (ii) the Indian Government has endeavoured to combat corruption and protect the rights of citizens; (iii) there are also alternative avenues to seek justice that the applicant has yet exhausted and (iv) the applicant had not made any attempt to pursue his complaint against the police officers who handled the case. Further, the Board, when hearing the appeal, went in detail to analyse the applicant’s case on state acquiescence and considered the case was not established.  We agree with the Director/Adjudicator’s finding that it is not accepted that reasonable state protection would not be available to the applicant if he resorted to it.

17.  By Ground 2, the applicant alleged that the Director has failed to recognise COI information and evidence put forward by him which are contrary to his decision.  We do not find this complaint arguable. The Director had listed out the COI reports provided by the applicant in [7] and considered them in [17] of the Decision. The Director did not turn a blind eye to the COI which suggest corruption and misuse of power in the police force, yet, there are also objective COI suggesting improvement and reform in the Indian police as pointed out in the preceding paragraph.  The Director has explained his view and decision in [17] of the Decision why he considered the likelihood of the feared treatment materializing to be low for the applicant’s case.  The Director’s conclusion is well based and is endorsed by the Board.  This Court does not see any reason to disagree.

18.  By Ground 3, the applicant complained that the Director had not made sufficient enquiry into the applicant’s case.  This is a groundless accusation.  The Director spent more than 12 pages under part I to part III of the Decision in setting the personal background, each and every incident of attack allegedly suffered by the applicant, the immigration history and the worries and fear faced by the applicant.  The Director then considered the applicant’s case in great detail under part IV and assessed the claim under all applicable grounds of claim. The Board, when reviewing the Director’s decision, adopted a similar approach and arrived at the same conclusion as the Director. As such, we do not see any real prospect of success under this ground.

19.  By Ground 4, the applicant alleged that the Director/the Board have failed to attain the “high standard of fairness” as set by the Court of Final Appeal in Sakthevel Prabakar v. Secretary for Security [2004] 7 HKCFAR 187.  By following the CFA ruling, the Director then introduced the Unified Screening Mechanism (“USM”) on 3 March 2014 to determine NFC lodged by foreign claimants. We are satisfied that the due procedure of USM had been followed through in this case and the applicant was given every reasonable opportunity to establish his case: (i) he was given oral hearings before the Director and the Board; (ii) his claim was properly heard and assessed; (iii) the Director and the Board had taken into account COI, evidence of torture, the vulnerability of the applicant to torture if return and the applicant’s credibility.  In the circumstances, the applicant’s complaint on procedural irregularity/unfairness and the lack of high standard of fairness is not reasonably arguable.

20.  By Ground 5, the applicant complained that the Director has failed to advise the Applicant to obtain medical reports when deciding the seriousness of the injuries suffered by him during the attacks.  We do not see this ground can take the applicant’s case any further.  It is the applicant’s case that he was attacked on several occasions and was treated in a hospital for 2 days for one occasion and for other occasions, he was treated at home with ointment, painkillers and heat spray.  Both the Director and the Board found that the ill treatment allegedly suffered by the applicant did not attain a minimum level of severity and we agree with the findings.  For the purpose of completeness, paragraph 42 of the “Notice to Persons Making a Non-refoulement Claim” made under the USM (which is accessible in the website of Immigration Department and be provided to every NFC claimants) clearly sets out the claimant’s right to submit medical reports.  This ground is not reasonably arguable.

Conclusion

21.  In our view, the Director and the Board had fully reviewed the applicant’s case. We are satisfied that the findings of the Board and the decision of the Judge are supported by evidence and fully justified.  We agree with the Director and the Adjudicator’s view that the ill-treatment suffered by the applicant did not attain the minimum level of severity and the risk of torture is assessed to be low which did not qualify the applicant to succeed on any of the applicable grounds.

22.  We see no errors of law nor any evidence to suggest a failure to comply with the high standard of fairness. Further, determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  There is no reasonable basis to challenge the decisions of the Director and the Board.  We agree with the Judge that leave to apply for judicial review should be refused.

23.  In our view, the delay is substantial and not justified by any cogent explanation.  We do not see any good reason for extending the time for appealing. It is detrimental to good administration to allow extension.  We also do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 5 January 2018 is dismissed accordingly.

24.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.