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

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[2019] HKCFI 2351-EN-2019-09-20

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

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HCAL 624/2017

[2019] HKCFI 2351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 624 OF 2017

________________________

BETWEEN

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

________________________

Before: Hon Campbell-Moffat J in Chambers

Date of Hearing: 20 September 2019

Date of Decision: 20 September 2019

________________________

D E C I S I O N

________________________

Introduction

1. This is an application filed on 5 June 2019 to appeal my decision of 13 April 2018 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 attended court with the assistance of an interpreter.

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 legally on 14 March 2009 and thereafter overstayed. He submitted a non-refoulement claim form on 31 July 2014 and was interviewed by the Director of Immigration (“the Director”) on 26 November 2014, 29 January 2015 and 28 April 2015. The Director dismissed his claim under all heads, by Notice of Decision on 29 May 2015 and by Notice of Further Decision on 10 November 2016. He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Yung Yiu-wing (“the Adjudicator”), heard him on 18 May 2017. The Adjudicator refused his appeal on 31 May 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 September 2017, which was outside of the three months’ time limit and he therefore required an extension of time before his application for leave could be considered. He was given the benefit of the doubt and extension of time was granted on the papers. He did not request an oral hearing for the leave application. The matter was therefore considered on the papers. His application for leave to apply for judicial review was refused on 13 April 2018. He had 14 days from that date to appeal that decision which would have expired on 27 April 2018. By way of summons filed on 5 June 2019, 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. 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 15. 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.

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. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required 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. He is grossly out of time. The Form CALL-1 was sent to the address on his Form 86, which was the Castle Peak Bay Immigration Centre (“CIC”). On 16 May 2018, the court was informed by the Immigration Department of a new address for the applicant which was Room B, 8/F, 157 Tai Nan Street, Sham Shui Po, Kowloon. This is not the address which the applicant gave to the court today. A further copy of the Form CALL-1 and the Order were sent to that address on 16 May 2018. He provides no explanation for why he did not receive this second letter. On 24 August 2018, the applicant was arrested for possession of dangerous drugs and was detained thereafter and eventually sentenced to eight months’ imprisonment. He was released into the custody of the Director on 4 February 2019. The court received a letter from the applicant dated 7 February 2019, asking for a copy of the Form CALL-1 and the Order. On that occasion the court wrote to him and told him to send a representative to obtain a copy. Further letters were received on 11 and 22 March 2019 asking for the progress of his claim and assistance with an appeal. He was informed by letter dated 25 March 2019 of the steps to be taken and the time scale for appeal. He has submitted a letter he wrote to John M Pickavant & Co dated 25 March 2019 seeking assistance. Mr Pickavant obtained a Form CALL-1 from the High Court and sent it to him under cover of his reply of 28 March 2019. Thereafter the court file shows that an undated and uncompleted summons (stamped received 16 April 2019) was sent to the court along with a completed affirmation from the applicant. He complained at that time that he had no idea that his application for leave to apply for judicial review had been refused until he was told by his solicitors on 31 March 2019. He also complained that he wished to be present for that hearing. He chased further on 6 May 2019. His case was therefore referred by this court to the Resource Centre for Unpresented Litigants to assist him on 14 May 2019. A further detailed letter was sent to the applicant on 17 May 2019 setting out the state of the case and the steps which were required to be taken. It was also sent to CIC. The completed summons was finally filed on 5 June 2019. The applicant claims he did not receive the Order on time but gives no further explanation as to why that could be given that for much of the intervening period he was detained at CIC. He complains that at no stage did the staff of the Immigration Department inform him that his application for leave had been unsuccessful. I am surprised by that but the tenor of his correspondence suggests that was the case. I do not accept that letters from the High Court to CIC and addressed to the applicant did not reach him. Nor do I accept that once detained he was not informed of the fact that his application for leave had been refused. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[1]. He failed to do so when he was first released from CIC in 2018, which led to the original documentation being sent to the wrong address. The consequences of any delay arising from failing to provide an up to date address will fall upon the litigant[2].

6. Even if the court accepted the apparent failure of the Immigration Department to pass on official correspondence on numerous occasions and a complete failure to inform him that his leave application had been refused as far back as April 2018, the court is required to examine whether there is any merit in the applicant’s appeal[3]. Whether there is any such merit will depend upon well-established legal principles[4] 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 these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal.

7. As the role of the court in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator, it follows that an appeal from this court should not be founded upon any attempt to appeal those same decisions. It is an appeal from the decision of this court and the applicant should look to draft grounds of appeal on that basis. This was explained in some detail to the applicant when he appeared. He was unable to advance any grounds of appeal.

Conclusion

8. The applicant has now been in Hong Kong since 2009. He has been interacting with various government agencies throughout and has a reasonable command of English. The explanation he has offered to this court, as to why he did not receive the Order is protracted and he is certainly responsible for the fact that he did not receive the original or second Form CALL-1. If the Immigration Department wholly failed to pass on later correspondence and failed to inform him that the application had been unsuccessful, I am deeply disappointed but I am not going to lay the blame at anyone’s door without proper evidence.

9. In the event, I have considered his underlying application. It 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 before the court as to the decision to refuse leave. The applicant merely wishes the Court of Appeal to consider his situation afresh. Having considered the length of delay, reasons for the delay and underlying merits of his application, it would not be in the interests of justice to grant an extension of time in all the circumstances of this case.

10. The applicant’s summons filed on 5 June 2019 be dismissed.

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

The applicant appeared in person.

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

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

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

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

HCAL624/2017

[2018] HKCFI 654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 624 of 2017

BETWEEN

	Bhopinder 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:

Application to apply for extension of time be allowed.
Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1. The Applicant entered Hong Kong on 14 March 2009 from Thailand and was permitted to remain until 28 March 2009. He was arrested on 13 April for overstaying. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 15 April 2009 and released on recognisance on 22 April 2009. His NRF claim form was submitted on 31 July 2014 with the assistance of the Duty Lawyer Service.

2. The Applicant attended three screening interviews on 26 November 2014, 29 January and 28 April 2015. Some of the delay was to give time to the Applicant to submit documents which he suggested he wished to do. They were not forthcoming. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 29 May 2015 and by Notice of Further Decision (re BOR 2) on 10 November 2016. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The Adjudicator of the TCAB, Yung Yiu-wing, heard him on 18 May 2017. The Adjudicator refused his appeal on 31 May 2017.

3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 September 2017, which is outside of the three-month time limit. However I note that the form was originally signed on 25 August 2017 and therefore extend time for service of the Form 86 to 15 September 2017. The Applicant did not request an oral hearing. The matter was therefore considered on the papers.

Background

4. The Applicant is an Indian national born in Bauli Inderjit, Batala, Punjab, India. He is married with two sons, one of whom is now in Canada. He is a supporter of the Shiromani Akali Dal party (“SAD”) but only in so far as he voted SAD. He was not an active party member. Between 1999 and 2002 he worked abroad in the United Arab Emirates as a labourer. Thereafter, he worked as a diesel mechanic in Kashmir and returned home after the death of his father in 2007. In August 2008, the Applicant had a dispute with another villager over the use of an agricultural water pump situated between their two pieces of land, which resulted in him knocking out that villager with a farm tool. That villager was a member of the Indian National Congress party. He was arrested by the police for unlawful wounding and during his detention he says he was interrogated, tortured and beaten. His evidence before the Director on the nature of his torture and ill treatment was the subject of considerable criticism by the Director at paras 6.15‑6.27 of his Decision, and was not believed. He escaped to Delhi by bribing a police officer and is a wanted person. He remained in a hotel in Delhi for two weeks whilst he obtained a Malaysian visa. On 23 August 2008 he travelled to Malaysia on his own passport. He overstayed in that country and was eventually prosecuted for forgery and repatriated to Delhi on 20 December 2008. He did not return home but met up with his wife and children and travelled to Amritsar and Shiri Nagar. He then obtained a visa to visit Thailand and left once more on 30 December 2008. He came to Hong Kong from Thailand on 14 April 2009 and filed his application for non-refoulement protection on 15 April 2009.

The non-refoulement claim

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

i. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);
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 (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”);
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”); and
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”).

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. He must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present.” The question is essentially whether there is a real riskor real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

7. The Director analysed the Applicant’s claim on all applicable grounds after three separate interviews as outlined above. He correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, which he did to a limited extent albeit not always to his advantage as his case shifted more than once. In coming to his decision to reject his claim under the various heads, the Director acted reasonably, took the Applicant’s case at its highest and explained his decision on the merits in a detailed, clear and intelligible manner.

Decision of the Adjudicator

8. The Adjudicator also analysed the Applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles including the burden and standard of proof. He too gave the Applicant the benefit of the doubt despite noting that his evidence before the tribunal was neither credible nor logical and was at times inconsistent with his previous testimony before the Director. The Adjudicator made an equally detailed assessment of the facts relied upon by the Applicant and gave full reasons for his view of the veracity of those facts.

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 Decisions of the Director and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. In order to exercise upmost fairness, I therefore considered the papers to assess whether there had been any suggestion of unlawfulness, unreasonableness or unfairness which could found a basis of an application for judicial review such that the Applicant should be asked to submit grounds or appear in person to make submissions even though the burden is clearly upon him to do so at the outset.

11. The Director and adjudicator were meticulous in their approach to the facts as relied upon by the Applicant. They found those facts wholly incredible but nevertheless went on to assess whether the Applicant had reached the low standard of proof required of him under the various heads of claim and came to the conclusion that he had not done so.

Conclusion

12. I have considered the papers, grounds and submissions 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 Director and 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 their determinations, which were open to them on the facts and eminently reasonable.

13. 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 13^th day of April 2018.

	(Queenie Mak)
	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 granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 13/4/2018 Bhopinder 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 13/4/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1737/15/6/123/IN382 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9000200/16 (Formerly RBCZ 914/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1