RE HARJEET SINGH

CAMP 29/2019

[2019] HKCA 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 29 OF 2019

(ON AN INENDED APPEAL FROM HCAL 46/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 19 October 2018 refusing the applicantleave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 29 December 2017 and the decision of the Director of Immigration dated 5 November 2014.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 28 May 2014.  He raised a non-refoulement claim on the same day after he was refused entry. 

3.  The applicant’s claim was based on threats from a former childhood friend, for reasons unknown to the applicant.  The details of the applicant’s claim have been summarised by the judge at [2] to [11] of the CALL-1 Form.

4.  By a Notice of Decision dated 5 November 2014 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 29 July 2015, the Board dismissed the appeal on 30 March 2016 (“Board’s Decision”).

6.  At [38] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [22] that internal relocation would be viable.

7.  By a Notice of Further Decision dated 20 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

8.  The applicant again appealed to the Torture Claims Appeal Board.  The Board dismissed the appeal on 29 December 2017.

The judge’s decision

9.  The applicant filed a Form 86 on 9 January 2018 against the Director’s First Decision and the Board’s Decision dated 29 December 2017.  The Form 86 contained the following grounds for judicial review, summarised below:

(1)   that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case that he was tortured at the behest and collusion of the police and the state law enforcement agencies as well as those high up in the political circle which render the state liable to the applicant for its public officials’ failure to protect its citizens;

(2)   that the Director failed to take such argument into account or to give sufficient weight to such argument before reaching its decision;

(3)   that the Director had listed relevant COI which support the applicant’s case that the police in India would not be able to protect its citizens but failed to consider or give sufficient weight to them in the consideration of his claim;

(4)   that the Director failed to consider the fact that corruption and incompetency in the administration in India is still a very serious problem which supported the applicant’s case;

(5)   that the Director had failed to attain the high standard of fairness that his decision was unreasonable in the public law sense; and

(6)   that the Board failed to make sufficient enquiries before reaching his determination without taking into consideration of the fact that the applicant has no or limited options to bring his evidence before the Board and that he was in custody at the detention of the Immigration Department and failed to give sufficient opportunity for the applicant to arrange relevant evidence in support of his claim in his appeal.

10.  In the affirmation in support of the leave application dated 9 January 2018, the applicant exhibited the relevant documents.

11.  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 to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [19] to [24] of the CALL-1 Form:

“19. By then the applicant was of course way out of time by more than three years with his application as regard the Director’s 1st Decision, or for that matter his 2^nd Decision as well as the Board’s 1st Decision, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires such application be made within three months from the date when grounds for the application first arose, and for which delays no explanation whatsoever has been provided by the applicant, and in any event as held in Re Moshsin Ali [2018] HKCA 549, as the Board’s decision had overtaken the Director’s decision, the court would only focus on the Board’s decision in an application for judicial review, and which I propose to do here in my consideration of the applicant’s ground for his intended challenge against the Board’s 2^nd Decision relevant to his claim under BOR 2 risk which is contained in ground (6) only.

20. While it may be true that at the time of the Director’s 1^st Decision the applicant was still being detained by the Immigration Department, there is no question that he has since been released on recognizance, as evidenced by his residential address at a private tenement recorded in the Director’s 2^nd Decision of 20 January 2017, whilst if there were any further representation that he had wanted to make or any additional evidence or materials that he might have wanted to produce or needed further time to do so, he never raised any such issue or requests with the adjudicator in his appeals to the Board when in fact he chose to remain silent at the oral hearing of his first appeal before the Board. Even at the oral hearing for his application now before me, he merely repeated his claim as before without adducing any additional representation or materials relevant to his claim under BOR 2 risk, or for that matter any other applicable grounds for his claim. I do not find any merit in this complaint of the applicant.

21. As noted by the Director in paragraph 3 of his 2^nd Decision, although the applicant did response to the invitation to submit additional facts relevant to his claim under BOR 2 risk, he in fact did not provide any additional materials or facts on any other absolute and non-derogable rights under HKBOR in particularly BOR 2 risk, but nevertheless the Director proceeded to consider his such claim based on the information and materials then available to him before finding that the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India, a conclusion similarly reached by the Board on the same basis, of which both were in the circumstances entitled to do with their evaluation as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

22. Further, the fact that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

23. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

24.   For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

12.  According to the court’s records, a copy of the CALL-1 form and the sealed copy of the judge’s order were sent to the applicant on 19 October 2018.

Application for extension of time to appeal and grounds for appeal

13.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 16 November 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ Bruno Chan on 23 January 2019.

14.  By a summons dated 15 February 2019, the applicant renewed his application for an extension of time to appeal before this court.  He stated that:

“Leave to appeal against the decision of Deputy High Court Judge Bruno Chan dated 23^rd January 2019 be granted out of time”

15.  In his affirmation of the same day filed in support of the appeal, the applicant stated that:

“1. I am the applicant herein.

2. I never received the decision or order from the court regarding my appeal. This is why I could not appeal on time.

3. The judge was wrong to dismiss my application.

4.   I never received the order of the judge”

16.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 11 March 2019, the applicant was debarred from lodging any written submissions and the application has been dealt with on paper on the basis of the materials already filed before the court.

Discussion

17.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

18.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The applicant claims, without giving any explanation, that he did not receive the CALL-1 Form.  Further, he did not explain how he came to know about the CALL-1 Form eventually.

19.  We nonetheless go on to consider the merits of the intended appeal.

20.  The only ground of appeal is stated at paragraph 3 of the affirmation dated 15 February 2019.  The applicant submitted that the judge was wrong to dismiss his application without giving any particulars.  This ground is a mere assertion and is bound to fail.

21.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 15 February 2019 is dismissed accordingly.

22.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.