PARAMJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

CAMP 138/2021

[2021] HKCA 1978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 138 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 149 OF 2018)

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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):

INTRODUCTION

1.  By summons dated 3 May 2021, the Applicant applied to this Court for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan (“Deputy Judge”)  dated 25 October 2019 whereby the Deputy Judge refused to grant to the Applicant leave to apply for judicial review (“Leave Decision”).  The Applicant’s previous application for extension of time to appeal against the Leave Decision was rejected by the Deputy Judge on 29 April 2021 (“EOT Decision”).  The Applicant’s intended judicial review was directed against the decision dated 7 December 2017 of the Torture Claims Appeal Board (“Board”)  dismissing his appeal against the decision dated 15 December 2016 of the Director of Immigration (“Director”)  rejecting his claim for non-refoulement protection.

2.  Having considered the papers, we are of the view that it is appropriate to determine the summons dated 3 May 2021 without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.  The Applicant is a national of India.  He entered Hong Kong illegally on 11 January 2015 and was arrested by the police the next day.  He was referred to the Immigration Department, after which he raised a claim for non-refoulement protection.

4.  The Applicant’s claim was that, coming from a family of supporters of the Congress Party (“CP”), he also became a supporter of CP.  During the general elections in May 2014, the Applicant was invited by supporters of the rival Samajwadi Party (“SP”)  to join SP. He refused to join them and was slapped and punched.  On the election day, supporters of the rival parties attacked each other with wooden sticks and other weapons.  The Applicant was struck by someone suspected to be a SP supporter causing him to sustain an open wound.  He went into hiding and decided to leave India on 18 December 2014 for Hong Kong after he had heard that SP supporters were looking for him for revenge.

5.  By a Notice of Decision dated 15 December 2016, the Director rejected the Applicant’s claim.  His decisions covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The Director found no reliable evidence that the Applicant had been specifically targeted by SP supporters and assessed the level of risk of harm to the Applicant if he were to return to India as low.  In the absence of official involvement, the Director considered that state protection would be available to the Applicant. Further, based on reliable and objective Country of Origin Information (“COI”), the Director found that internal relocation was viable.

6.  The Applicant appealed against the Director’s decision to the Board.  He attended a hearing on 10 November 2017.  However, other than confirming his claim as set out in the hearing bundle, he declined to give evidence or answer questions put to him by the Board.  The Board dismissed his appeal on 7 December 2017.  The Board found that there were substantial doubts about the Applicant’s claim.  In the absence of meaningful testimony from him, the Board did not accept that he was involved in the alleged incident that led to his being pursued by SP supporters, or that he would face any of the applicable risks should he return to India.

THE LEAVE DECISION

7.  On 1 February 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s decision.  He did not put forward any ground for review except stating that “I have danger to my life in India”, which he repeated in his supporting affirmation.  The Applicant did not request for an oral hearing and the Deputy Judge dealt with the application on papers.

8.  The Deputy Judge referred to the principles that evaluation of the risk of harm is primarily a matter for the Director and the Board, and that the court will not usurp their role as primary decision-makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by an applicant.

9.  The Deputy Judge refused to grant leave to apply for judicial review, holding that ([2019] HKCFI 1045):

“12. … in the absence of any oral testimony or answers to clarify and substantiate his claim, the Board was entitled to find on the basis of the materials available before it that the applicant has failed to establish his non-refoulement claim …

13. … the applicant did not identify any legal error or procedural unfairness or irrationality in the Board’s decision, and in the absence of which I am unable to find any reasonably arguable basis to challenge these findings of the Board.

15. … having considered 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.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review ...”

THE EOT DECISION

10.  On 6 November 2020, the Applicant applied for an extension of time to appeal against the Leave Decision, as he was out of time by for almost 1 year.  The Applicant explained by affirmation that, being an unrepresented litigant, he was unaware of the time limit for an appeal, and that he never received the Leave Decision because he was in the custody of the Immigration Department.  He was absent at the hearing of the application for extension of time to appeal before the Deputy Judge.

11.  In the EOT Decision, the Deputy Judge held that a delay of almost 1 year was extremely substantial and excessive.  He did not accept the Applicant’s explanation for the delay, holding at §6 that ([2021] HKCFI 1124):-

“Ignorance of the rules of course cannot be accepted as any reason or excuse for their non-compliance, while the court record shows that the decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post, and in the absence of further details or documentary evidence to corroborate his bare assertion such as when he was in custody and when he was released, I am not satisfied that he has provided a good or valid reason for his such serious delay.”

12.  On the merits of the intended appeal, the Deputy Judge held at §7 that:-

“… [the Applicant did not] put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or in his affirmation why he thinks that the decision was reached unfairly, while he had never requested any oral hearing for his leave application, nor did he clarify what situation in his home country that he had wanted to make, and that he also failed to attend the hearing of his summons without any explanation. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.”

13.  The Deputy Judge refused to grant to the Applicant extension of time to appeal the Leave Decision.

THE PRESENT APPLICATION

14.  By summons dated 3 May 2021, the Applicant sought leave from this Court to appeal out of time against the Leave Decision, and leave to advance a “new sole ground of appeal”.  He did not, however, set out any grounds of appeal in the summons.  In an affirmation also of 3 May 2021, the Applicant stated that:-

“… The decision made by the High Court has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. I would like to appeal out of time as I didn’t had neither the appropriate means nor I received the decision on time. Moreover, I did not received [sic] any correspondence from the High Court regarding the hearing date that is why I did not appear in the hearing.”

15.  In his written submissions dated 24 June 2021, the Applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  Lastly, he made reference to the matters that the Board should consider where there has been late filing of a notice of appeal, without explaining the relevance of such reference.

DISCUSSION

16.  It was held in Farrukh Zaib [2020] HKCA 408 at [22] that, 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 an extension of time were granted.

17.  The delay in this case was almost 1 year.  The Deputy Judge was clearly correct to hold that it was extremely substantial and excessive, and reject the Applicant’s explanation for the reasons he gave.  In his affirmation of 3 May 2021, apart from repeating that he did not receive the Leave Decision on time (which was rejected by the Deputy Judge), the applicant further stated that he did not have “the appropriate means” without any further elaboration.  He also stated that he was absent before the Deputy Judge at the hearing of the application for extension of time to appeal because he did not receive any correspondence about the hearing date.  However, he did not set out what he would, or could, have said if he had attended the hearing.

18.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of a judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong (Farrukh Zaib [2020] HKCA 408 at [24]).  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]).

19.  In his affirmation of 3 May 2021, the Applicant did not identify any error on the part of the Deputy Judge, except stating that the Leave Decision was reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.  He did not, however, request for an oral hearing of the application for leave to apply for judicial review.  Furthermore, at the hearing before the Board, the Applicant declined to give evidence or answer questions by the Board.  The Deputy Judge was correct to hold that the Board was entitled to make the assessment it did and not to intervene with the Board’s assessment, pointing out that:-

“… judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh … ”

20.  Turning to the Applicant’s written submission of 24 June 2021, no valid ground of appeal can be found from the general propositions regarding high standards of fairness or the reasonableness of a decision, or his bare assertion that the Board acted in a procedurally unfair manner without properly assessing his claim.  The same applies to his reference to late filing of a notice of appeal before the Board.

21.  The Applicant has failed to identify any proper grounds of appeal.  There is no merit and no prospect of success in his intended appeal against the Leave Decision.  The application for extension of time to appeal is refused and the Applicant’s summons dated 3 May 2021 is dismissed.