LOVEPREET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 34/2022

[2022] HKCA 994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 34 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 924 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):

1.  On 25 January 2022, the Applicant took out a summons with a supporting affirmation seeking an extension of time to appeal against the order of Deputy High Court Judge C P Pang (“the Judge”)  dated 28 September 2020 (“the Order”)  refusing to grant him leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 25 April 2018, which dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 25 November 2016.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of India.  He first arrived in Hong Kong on 9 October 2015, but was refused permission to land and was removed back to India on the same day.  No claim for non-refoulement protection was made at that time.  On 20 November 2015, the Applicant surrendered to the Immigration Department claiming that he had entered Hong Kong unlawfully on 17 November 2015.  He was subsequently released on recognizance.  He made his non-refoulement claim by written representation on 7 July 2016, alleging that if refouled, he would be harmed or even killed by his 2 paternal uncles who wished to take possession of the land he had inherited from his grandmother.  Details of the Applicant’s claim have been summarised by the Judge at §§1-3 of the CALL-1 Form ([2020] HKCFI 2388).

5.  By a Notice of Decision dated 25 November 2016, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.  The Applicant appealed the Director’s decision to the Board.  On 25 April 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision (“the Board’s Decision”).  The Board found that the Applicant’s account of primary facts was inconsistent and differed considerably from his written and oral evidence to the Director, and considered that the nature and extent of the inconsistencies and his failure to recall important aspects of his claim were due to the fact that he had fabricated the entirety of his claim in relation to the land.  The Board was not satisfied that the Applicant’s alleged fear of harm if he returned to India was genuine.

JUDGE’S DECISION

7.  On 24 May 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

8.  On 28 September 2020, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“14. In the present case, the Board in fact rejected the applicant’s appeal/petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the major inconsistencies in the applicant’s evidence and his failure to recall important aspects of his claims in the hearing before the Board. It found him not a truthful witness and fabricated his claim. It did not accept that there was such a land dispute or that he had been harmed or threatened by his uncles. On the factual findings, there would be no basis for the applicant’s claimed fear.

15. As explained above, assessment of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.

16. The complaint raised by the applicant in his Form 86 and affirmation was only a vague assertion without particulars or evidence in support. It cannot be a viable ground or reasonably arguable to challenge the findings of the Board.

17. The Board rightly pointed out the applicant’s failure to raise non-refoulement protection when he first arrived in Hong Kong on 9 October 2015. Indeed, the applicant’s conduct in Hong Kong by his delay in lodging the claim for protection damaged his credibility and was inconsistent with someone in genuine fear for his life and safety.

18. Even on his own account, the alleged past ill-treatment was of low intensity and frequency. It came nowhere near the level of severity required by law to constitute torture or CIDTP. There is no substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.

19.   The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.  There cannot be any criticism of its determination which is eminently reasonable.”

9.  On 14 January 2022, Deputy High Court Judge To refused the Applicant’s application by summons dated 17 November 2020 for an extension of time to appeal against the Order.

THIS APPLICATION

10.  By a summons taken out on 25 January 2022, the Applicant renewed his application for an extension of time to appeal against the Order to the Court of Appeal.  In his supporting affirmation filed on the same date, the Applicant contended that the Judge had given an unfair decision because he could not relocate anywhere in India, and the Board did not give him time to submit further evidence in support of his claim and was wrong.

11.  In his 3-page written submissions dated 8 February 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims.  He claimed that the Board did not act in a procedurally fair manner in dealing with his application and failed to properly assess his credibility.

DISCUSSION

12.  In deciding whether to extend time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

13.  The prospect of success of an intended appeal is important.  The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

14.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

15.  In relation to the Applicant’s allegation that the Board failed to give him time to submit further evidence in support of his claim, as held by the Judge at [19] of his decision, the Board engaged in a joint endeavour with the Applicant in the assessment of his claim, gave him a reasonable opportunity to state his case and enquired into the relevant issues appropriately.  The Applicant’s allegation is a mere assertion without particulars.

16.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 28 September 2020, and has failed to raise any viable ground of appeal against the Order in his summons or affirmation or written submissions.

17.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

18.  The application for extension of time to appeal is refused, and the Applicant’s summons of 25 January 2022 is dismissed.