RE GURINDER SINGH

CAMP 264/2021

[2022] HKCA 995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 264 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2900 OF 2018)

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J U D G M E N T

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

1.  On 10 November 2020, DHCJ P. Li (“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.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 26 November 2020 for extension of time to appeal.  That summons was dismissed by the Judge on 13 July 2021.

3.  On 21 July 2021, the applicant filed his summons in CAMP 264/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 21 July 2021, the applicant lodged his written submissions in support of the Summons on 28 July 2021.

5.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of India.  He entered Hong Kong on 26 April 2014 as a visitor and was permitted to stay until 10 May 2014.  He did not depart and overstayed.  He was arrested by police on 27 March 2015 and lodged his non-refoulement claim on 29 March 2015 alleging that if refouled, he would be harmed or even killed by his uncle Manjit Singh (‘MS’), who was a supporter of the Shiromani Akali Dal Party (“SAD”), over a family land dispute as the uncle claimed he should be entitled to the land farmed by his father.  The factual background of this case was succinctly summarised by the Judge at [3] – [10] of the JR Decision ([2020] HKCFI 2836).

7.  By a Notice of Decision dated 14 February 2018, the Director of Immigration (“the Director”)  decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  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 11 September 2018.  By its decision dated 26 November 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For reasons set out in [31] to [75], the Board accepted the applicant’s account that he and his father were subjected to harassment, intimidation and an incident of physical assault by MS over the family land dispute, and even though they had filed a report with the police, the police refused to accept the complaint.  He claimed the police accused them of using land without permission, but accepted that he was not charged by the police, nor did he receive a court summons.  After he left India, the land was left unattended.  No other members of his family who had remained have been injured.

9.  The Board found that the dispute was private in nature, without state instigation or acquiescence, and that the applicant did not suffer any serious injury that attained the minimum level of severity.  The Board further found that there is reasonable state protection, and that internal relocation is a reasonable and viable option.  For the aforesaid reasons, the Board considered that there is no real risk of harm upon his return to India, and his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 18 December 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision but no ground for seeking relief was given.  In his supporting affirmation of the same date, he only said that his uncle wants to kill him and that the authorities in his country will not protect him.  Although he had stayed uneventfully in India after the assault, he claimed that internal relocation is not possible for him.

The JR Decision

11.  The applicant did not request for an oral hearing and the application was disposed of on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [18] - [21] of the JR Decision:

“18.  The applicant applied for leave to apply for judicial review on 18 December 2018.  In his supporting affirmation, he pointed out that his uncle wanted to kill him.  The authorities in India would not protect him. Relocation was not possible.

19.  In judicial review, the task of this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duties of the TCAB and the Director.  In general, this court would not interfere.

20.  The applicant repeated briefly the basic grounds of his claim.  He has not pointed out any error in the decisions of the TCAB and the Director.

21.  In my judgment, there is no error of law or procedure.  The decisions are reasonable.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 26 November 2020 for extension of time to appeal.  That was dismissed by the Judge on 13 July 2021.  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).

14.  As for (1), the applicant was late by only 2 days between the deadline for filing an appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was minimal.

15.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he was “late for apply due to lack of knowledge and insufficient sources”.  As the delay was minimal, the more important issue is whether there are merits in the intended judicial review.

16.  As for (3), the prospect of success of the intended appeal from the JR Decision, we agree with the Judge that there is no realistic prospect of success in the intended appeal.

17.  Both below and in this summons and supporting affirmation for extension of time before this Court, the applicant failed to provide any ground to reverse the JR Decision.  He only stated that he was not satisfied with the decision as it was not based on fact and reality, and that there was no transparency in the decision.

18.  In his written submissions, he advanced the following:

(1)  His life will become worse if refouled and he was not satisfied with all the decisions made in his case.

(2)  The points in his case were ignored and the decisions were not transparent.  The situation in his country is different from what the decision-makers might think, and it is hard for him to live and stand in front of his enemies.

(3)  Torture and deaths are common in police custody in India and the police would just give support to those who bribe them.

(4)  It is impossible for him to go back to work and even if he files a report to the police, the police would just inform the powerful people of the same.

(5)  It was impossible for him to go back to India at the present stage and he urged the court to understand his problem and let him stay in Hong Kong until his problem is solved.

(6)  His life would become worse if he were to return to his home country because of his enemies.

19.  These are complaints from the Board’s findings of fact.  It is clear from the Board’s decision that the applicant’s claim was rejected on the ground that the land dispute was private in nature with no state involvement.  The Board had rightly pointed out that reasonable state protection is available, and he may safely relocate to other parts of India.  It was perfectly open for the Board to reach its findings and conclusions, and the judge was right to hold that the Court would only intervene if there were valid public law grounds, of which there were none. We agree.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 21 July 2021.