RE CHOHAN CHAMKAUR SINGH

CAMP 47/2018

[2018] HKCA 332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 47 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 364 of 2017)

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JUDGMENT

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

1.  By summons filed on 20 April 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 9 March 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 19 May 2017 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 29 November 2016 rejecting his non-refoulement claim. 

2.  Both the Board and the Director have written to the court indicating that they adopt a neutral stance in this application.

3.  In his written submission, the applicant requests that this application not be disposed of on paper.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, the Court may determine the application on paper without an oral hearing.  Having considered the papers and the applicant’s written submission, we are of the view that it is not necessary to hold an oral hearing and it is appropriate to determine the application on paper without a hearing.

4.  The applicant is an Indian national from the state of Punjab.  He entered Hong Kong as a visitor on 29 June 2006 and overstayed here since 14 July 2006.  On 29 January 2007, he was arrested for overstaying.  He made a torture claim on 1 February 2007.  His claim was rejected by the Director in March 2013 and his appeal to the Board was dismissed on 8 May 2013.  On 28 May 2013, the applicant made a non-refoulement protection claim.

5.  The applicant’s claim is based on his fear that if he were to return to India, he would be harmed or killed by the family members of his ex-girlfriend (“Kaur”) because they disapproved of his relationship with her and also blamed him for her disappearance. 

6.  According to the applicant, he came to know Kaur in October 2005.  Unknown to their families, they went out a few times and had sexual intercourse several times.  In March 2006, Kaur asked for the return of photographs and letters she gave him, but the applicant only gave her their photocopies for fear that she would later accuse him of having sex with her against her will.  Subsequently and after a heated argument the applicant returned to Kaur half of the letters and all the photographs, except one.  Two weeks after they stopped seeing each other, Kaur met with a traffic accident and was hospitalised.  During her hospitalisation, the doctor informed her family that she was pregnant.  After her family discovered the letters and photographs, her father, brothers and several men went looking for the applicant at his home.  On his mother’s advice, the applicant left Punjab to live with his brother and travelled around India for several months.  During his absence from home, Kaur’s family members came to his house several times to look for him.  They said Kaur had disappeared and accused the applicant of hiding her.  The applicant claimed that Kaur’s family was rich and politically influential, and operated a transport business all over India, and thus has the ability to track him down.  He therefore left India for Hong Kong for his personal safety.

7.  The applicant also claimed that after he left, Kaur’s family turned to take revenge on his brothers.  One of his brothers was beaten up by Kaur’s brothers in 2013, and was further hit by a car driven by Kaur’s brother a few months later.  Although the incidents were reported to the police, they took no action upon hearing the name of Kaur’s father. Consequently, the applicant’s brothers also left India in April 2014 for their own safety.  It is also said that even in 2015, Kaur’s father still went to the applicant’s home to look for him.       

8.  By his decision of 29 November 2016, the Director rejected the applicant’s claim, having considered BOR 3 risk[1], BOR 2 risk[2] and persecution risk[3].  The applicant appealed to the Board.  An oral hearing took place on 22 February 2017.  By its decision dated 19 May 2017, the Board dismissed the applicant’s appeal. The Board was of the view that the applicant was not a genuine claimant, and further found that he did not face any risk of torture or persecution; nor was he at risk of any cruel, inhumane, or degrading treatment or punishment or death.  The Board also found there would have been no hardship if the applicant had to relocate to other part of India and that state protection was available.   

9.  The applicant filed his Form 86 on 6 July 2017 together with a supporting affirmation.  He requested for an oral hearing which took place on 24 November 2017.  The applicant was absent at the hearing.  The Judge proceeded to consider his application on paper.

10.  The applicant’s Form 86 did not set out the grounds for his intended judicial review application.  In the supporting affirmation, the applicant advanced the following grounds:

(1)   The Board’s decision was procedurally unfair.

(2)   The adjudicator failed to carry out sufficient research and inquiry into the Country of Origin (COI) conditions.

(3)   The Board failed to assess and make a finding of fact as to “whether there exists in India a consistent pattern of gross, flagrant or consequence” [sic].  

(4)   The Board made errors of law. It was selective in considering the COI in that it failed to address the negative aspects, especially the corruption in the police force in India, and did not take into account or put sufficient weight on information favourable to the applicant, such as the influence of powerful political party.

(5)   He did not receive any letter from the Immigration Department inviting additional facts to support the BOR 2 claim.

(6)   At the hearing before the Board, the interpreter did not explain the meaning of further and additional information, or ask him to add or make further observations about his appeal.   

(7)   Kaur’s family was powerful and politically influential, and relocation is not possible.

(8)   He required more time to provide additional evidence to show he would be killed or prosecuted upon his return to India.

11.  The Judge refused to give leave to apply for judicial review as she considered the intended judicial review was not reasonably arguable and had no realistic prospect of success.  In [15] to [21] of the CALL-1 Form, the Judge stated:

“15. I have considered with rigourous [sic] examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. She [sic] analysed the material, claims and evidence carefully. The applicant’s complaints against her [sic] and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16. The applicant submits the adjudicator failed to carry out sufficient research and enquiry into the country of origin conditions. Having found the applicant was not a genuine and credible claimant, there was no need for the adjudicator to consider such information in depth. The same reason applies for why the adjudicator did not consider human rights violations and State protection in Bangladesh [sic] in any great detail.

17. The applicant accuses the adjudicator of making errors in law but I find no merit in those grounds. The applicant refers to never receiving a letter from the Immigration Department inviting him to submit additional information about a BOR 2 risk. The applicant’s BOR 2 risk was not dealt with separately (see the Director’s decision dated 29 November 2016) from the other grounds, he would not have received such a letter.

18. The applicant accuses the adjudicator of selecting bias Country of Origin information. The adjudicator did not refer to specific information or rely on such information in dismissing the applicant’s credibility. There is no merit in this complaint.

19. There is a request for more time to provide evidence that the applicant’s enemies have tortured his family and to provide a lot of additional information regarding his claim that circumstances have changed. There is a claim that his brother-in-law has been shot by his enemies and the police refused to investigate them. Apparently his enemies have falsely alleged he has committed a crime and the police are now looking for him. These are new facts that were not before the TCAB. These are not matters relevant to a judicial review that I should take into account.

20. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness, in fact the adjudicator adhered to a very high standard of fairness in assessing the applicants claim and treating the hearing as a de novo hearing. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

12.  The 14-day period for the applicant to appeal against the Judge’s decision expired on 23 March 2018[4]. On 20 April 2018, the applicant took out the present summons applying for leave to appeal out of time.

13.  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 putative 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). 

14.  In this case, the applicant was late by four weeks.  The applicant explained in his affirmation filed in this application that he only received the letter enclosing the CALL-1 Form on 17 April 2018 because his flatmate forgot to give it to him.  We are prepared to accept the explanation.

15.  We turn to assess the prospects of the intended appeal against the Judge’s decision, which is a crucial consideration in an application to extend time: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226.  The applicant has not provided any ground of appeal in the summons.  His affirmation and written submission are directed at the reason for the delay in filing the notice of appeal.    

16.  In his written submission, the applicant asked for an opportunity to put in further submission if the court required further information on the ground of appeal.  In applying for leave to appeal out of time, the applicant not only has to explain his delay, but also has to satisfy the court that his intended appeal enjoys good prospects of success.  Given that the applicant has given no ground of appeal in the summons, there is no basis for us to accede to his request for time to put in further information.

17.  Notwithstanding that no ground of appeal has been put forward, we have reviewed the Judge’s decision and the papers filed by the applicant in this application and in the action below.  In our view, the Judge had given due consideration to the grounds advanced by the applicant in his affirmation.  We are in agreement with the Judge’s view that there was neither procedural unfairness nor error of law in the Board’s decision, and there was no merit in his complaints against the Director’s and the Board’s decisions.  The Judge was correct in concluding that the applicant’s intended judicial review is not reasonably arguable and has no realistic prospect of success. 

18.  As we are of the view that the intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

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