Case Detail

HCAL 1023/2017

[2020] HKCFI 2238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1023 OF 2017

___________________

BETWEEN
	HARWINDER SINGH	Applicant
and
	TORTURE CLAIMS APPEAL BOARD /	Putative Respondent
	NON-REFOULEMENT CLAIMS
	PETITION OFFICE
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

___________________

Before:

Hon Campbell‑Moffat J in Chambers

Date of Hearing:	8 October 2020
Date of Decision:	8 October 2020

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 17 July 2020 to appeal my decision of 2 July 2020, refusing leave to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision. He did not do so. He now requires leave to extend time to appeal against that order. The applicant did not attend court for the hearing and therefore I have considered the application upon the papers.

Procedural Background

2. The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. He entered Hong Kong illegally from the mainland of China on 13 September 2016, through the Lok Ma Chau Control Point. He was refused permission to land and arrested for illegally remaining and obstructing an immigration officer for which he received 15 months’ imprisonment on 9 November 2016. He submitted a non‑refoulement (“NRF”) claim after release from prison on 28 July 2017 and was interviewed by the Director of Immigration (“the Director”) on 12 August 2017. The Director dismissed his claim under all heads, by Notice of Decision on 16 August 2017. He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard him on 17 November 2017. The Adjudicator refused his appeal on 24 November 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 7 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers. His application for leave to apply for judicial review was refused on 2 July 2020. He had 14 days from that date to appeal that decision which would have expired on 16 July 2020. By way of summons dated 17 July 2020, he seeks leave to appeal out of time.

4. An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right. However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days. This is clearly set out within the Form CALL‑1 which accompanies the Order of this Court. Time limits in judicial review are necessarily strict. Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6). The Court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5. In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired. It should also indicate the Grounds of Appeal the applicant seeks to rely upon.

6. Whilst the granting of an extension of time is entirely within the discretion of the Court, the applicant is required firstly to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time. Thereafter he must show whether there is any merit in his intended appeal. The applicant accepted he was late by just one day but that one day triggers the procedure referred to above. He gave no reason within his affidavit as to why he was late. The Court file suggests that it was properly served upon the correct address, which is the same address the applicant uses today. It is the duty of a litigant to not only give the Court an address to which correspondence or notice can be given but also such that it can come to his attention in a timely manner[2]. The consequences of any delay arising from failing to do so will fall upon the litigant[3].

7. Even though the applicant was late by just one day, Order 59, rule 2B(6) is engaged and the Court is required to examine whether there is any merit in the applicant’s appeal[4]. Whether there is any such merit will depend upon well‑established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim. The question for the Court is whether any grounds truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6]. There were no grounds.

Conclusion

8. The applicant was late by just one day but the length of any delay is not the only test to be applied. The efficient management of the judicial process is also a function of the Court. It has to find a balance between the rights of the individual and effective use of court time and resources. As to the former, despite the applicant providing no grounds of appeal and failing to attend, I have considered once again both his underlying application and his appeal. His underlying NRF claim has no merit as explained in the initial refusal of leave. There were no grounds of review and none could be ascertained from the papers. There was no complaint in respect of this Court as to the decision to refuse leave. The applicant wishes the Court of Appeal to consider his NRF claim afresh. That is not the function of the Court of Appeal in judicial review. Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

9. The applicant’s summons dated 17 July 2020 be dismissed.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

The applicant, acting in person, is absent.

[1]Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016)

[2]Re Ahmed Zakar CAMP 17/2019, [2019] HKCA 566

[3]Islam Raja Rais v Director of Immigration HCMP 881/2017

[4]Re Mehmood Ikhlas CAMP 28/2019, [2019] HKCA 567; Re MK HCMP 2609/2016; Re Gurung Min Bahadur[2018] HKCA 226

[5]Nupur Mst v Director of Immigration[2018] HKCA 524; Re Md Shohel Sheak[2018] HKCA 714

[6]Re Ansar Muhammad[2018] HKCA 227

HCAL 1023/2017

[2020] HKCFI 1426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1023 OF 2017

BETWEEN

	Harwinder Singh	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the Applicant being present/absent in open court

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1. The applicant entered Hong Kong illegally on 13 September 2016 from China by running through the Lok Ma Chau Control Point. He was refused permission to land. He was arrested by the police and convicted of illegally remaining and obstructing an officer of immigration on 9 November 2016 and given 15 months’ imprisonment. He was discharged on 17 July 2017 and detained at Castle Peak Bay Immigration Centre. The applicant submitted a non-refoulement claim by way of written representation on 23 January 2017. His non-refoulement claim form was submitted on 28 July 2017.

2. The applicant attended a screening interview on 12 August 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 16 August 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard his appeal on 17 November 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 24 November 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4. The applicant is an Indian national. He was born on 9 August 1990, in the Punjab. He received eight years of formal education but has no work experience of any kind. He is married with one daughter. His claim arises out of a dispute over land owned by the applicant’s father. In 2004, the land was rented to an uncle called Didar Singh (“DS”). His father went away when the applicant was still quite young and he says the family eventually lost contact with him and he cannot be traced. According to the applicant, DS paid only two monthly rental instalments for the land and has since occupied it without payment. As a result, the family were left impecunious with no means of income and had to rely on support from the extended family and have done so ever since. In 2006, the applicant and his mother asked DS to pay the rent or give up the land. DS assaulted the applicant by slapping him twice but did not hurt the applicant’s mother. As this was a private matter, the applicant did not report the incident to the police. The applicant maintains that he was scared as a result of this incident and therefore left India and went to Malaysia to live with a relative. He stayed there for two years returning home in 2009, when his visa was about to run out. Between 2009 and 2013, he lived at home in India. Nothing of any significance occurred during that time. However, in 2013, the applicant met his cousin and three male friends who, without warning, attacked him with choppers because he had asked for the return of his land. The applicant attended a private clinic to have his wounds dressed and received ointment and painkillers only although he says that his head and his arm were scarred by the incident. After that incident, the applicant went to Delhi and then to Dubai as his sister was there. He obtained an employment visa to work as a labourer but did not work at all during his two‑year stay in Dubai. In 2016, he returned to India (again because his visa was about to expire). Upon his return, he asked DS for the return of his father’s land as he wished to farm it himself. DS refused, orally abused the applicant, and threw him out of his house. This was reported to the village head but he said it was a private family matter. The applicant therefore went to report the matter to the police but on his way to the police station he met his cousin and three to four males armed with choppers, wooden sticks and baseball bats. He told them he was about to make a complaint to the police and they hit him all over his body, making his shoulder bleed and he had two teeth knocked out. The attack lasted 15 minutes. His neighbours took him to the hospital and the police were called but they advised against making a report and were also verbally abusive towards him. On this occasion his wounds were bandaged and he received ointment and painkillers. A few days later, he says the same group of people tried to kill him. They carried the same weapons as before, although this time they did not hit him but verbally abused him and ran after him. The applicant escaped and fled to a relative’s home in Batala and from there he flew to China.

The non-refoulement claim

5. Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii.     Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.
iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6. It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and Adjudicator must then assess the level of harm the applicant says he fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that he is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”. The question is whether there is a real riskor real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Director

7. The applicant has sought to judicially review the Director alone. As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with. I have however considered whether there are any grounds for judicial review of the Adjudicator in order to save court time and expense.

Decision of the Adjudicator

8. The Adjudicator analysed the applicant’s claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator was at great pains to establish the credibility of the background information as to the various characters relied upon by the applicant. He was given every opportunity to answer the apparent inconsistencies in his evidence but was unable to provide adequate answers. In so doing, the Adjudicator made extensive use of relevant COI materials. The applicant was not found to be credible. The reasons why that was the case were explained. The Adjudicator did not believe that the father had owned, and then rented out, the land in question to DS. Nor that the applicant and his family had been supported by the remainder of the family throughout with no other means of support. There was insufficient nexus between the fear of harm from DS and the land as it was apparently still owned by the applicant’s father. As DS was in possession of it, there was no advantage to DS in making any threat against the applicant. In any event, there was clearly no state involvement. This was a wholly private matter. As a result, he had not met the burden placed upon him to substantiate his claim.

Leave to apply for judicial review

9. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review her.

Grounds of review

10. There were no grounds of review. The applicant merely states that it was unfair and unreasonable. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.

Dated the 2^nd day of July 2020.

	(Marcus Wong)
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence.

Notesfor the Applicant: If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 2 July 2020 Harwinder Singh Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2 July 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8245/17/8/283/IN1569 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1501/17 (formerly RBCZ 10537/17)

Form CALL-1

HARWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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