Case Detail

HCAL 297/2019

[2022] HKCFI 699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 297 OF 2019

____________________

RE:

RASHPAL SINGH

Applicant

____________________

Before: Deputy High Court Judge To in Chambers

Date of Decision: 18 March 2022

______________

D E C I S I O N

______________

Introduction

1. This is the Applicant’s application for extension of time to appeal the order of Deputy High Court Judge Suffiad (“DHCJ Suffiad”) dated 4 November 2021 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”). On 16 December 2021, 42 days after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time.

The Law

2. Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The Applicant is 28 days out of time, which is substantial in the context of a 14-day period of appeal.

3. In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^{^[1]}, the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (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.

Length of delay and explanations for the delay

4. By 16 December 2021, the time to appeal has expired. The application for leave to appeal is 28 days out of time. The breach is substantial in the context of a statutory time limit of 14 days.

5. In his summons, the Applicant advanced the following reasons for applying for leave to appeal the Order out of time:

“I want to appeal to the Court of Appeal but I get High Court after schedule time to appeal. Please extend time for me.”

In his supporting affirmation filed on the same date, he wrote:

“Affirmation for extension of time to appeal, as I failed to appeal. I did not get High Court judgment timely. I wish my time will be extended and I will appeal.”

6. As may be gathered from the summons and the affirmation, the Applicant’s explanation for the delay in appealing is that when he received the Order, the 14 days’ time to appeal had expired. He advanced no grounds of appeal.

7. The Court noted that the Applicant used an address which is different from that used in his Notice of Application for Leave to Apply for Judicial Review (Form 86). But he has in fact received the Order. To ensure that nothing went amiss as result of his change of address, on 4 January 2022, this Court gave the Applicant directions by letter requiring him to file a statement within 14 days of the directions stating the following:

(a) explanation for the delay in applying for leave to appeal or in receiving the decision/order;
(b) the date when the decision/order in respect of which leave to appeal is sought was received or brought to the notice of the applicant, exhibiting supporting evidence, such as the envelope containing the decision/order showing the date of posting;
(c) the circumstances under which the decision/order came to the notice of the applicant, exhibiting supporting documentary evidence, if any;
(d) if the delay is related to change of address, state:
(i) the date of change of address, exhibiting supporting documentary evidence, if any, such as tenancy agreement, correspondence with government departments, envelopes showing the changed address and date of posting;
(ii) the date of reporting the change to the Immigration Department, exhibiting supporting documentary evidence, if any; and
(iii) the date of reporting the change to the High Court, exhibiting supporting documentary evidence, if any.

He was also advised that the application for extension of time will be determined on paper after 21 days from the date of the directions, regardless whether the above directions have been complied with.

8. The directions were designed to ascertain the length of the delay and to enable the Applicant to explain the reason for the late receipt of the Order or delay in appealing, which he has hitherto failed to give. For example, the Order may somehow have been delivered to a wrong address or received by the wrong recipient and then re-directed to him, or the address may somehow have become inaccessible or he may have moved before the Order was posted; and he may for some reason, such as illness or detention in custody, be prevented from initiating the appeal procedure. The Applicant never responded. There is therefore simply no explanation for the delay in appealing.

Prospect of success of the intended appeal

9. The Applicant did not advance any ground of appeal. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In a judicial review, the court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, in an application to appeal that decision out of time, the court can only focus on the above vitiating elements in the decision.

10. I have carefully examined the Call-1 Form. I am satisfied that DHCJ Suffiad had rigorously examined the Decision, the papers and the evidence with anxious scrutiny and was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness. He has satisfied himself that the Board’s decision has not been so vitiated. I agree with that conclusion. The Applicant’s sole intended ground of appeal being a challenge of the Board’s finding of fact is wholly unarguable. It has no prospect of success at all.

Prejudice to the respondent

11. As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time. But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. His application is an abuse of legal process and would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

12. The delay is very substantial. There is no valid explanation for the delay and no arguable ground of appeal. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. Despite having been given a last opportunity to explain the delay in lodging the appeal, the Applicant has failed to do so. The only reasonable inference is that he has no explanation for the delay and no arguable ground of appeal. His application is an abuse of legal process. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. For all these reasons, the application for extension of time to appeal is refused.

( Anthony To )
Deputy High Court Judge

The applicant is not represented

[1] CAMP 64/2020; [2020] HKCA 844

[2][2018] HKCA 524 at para 14(1)

HCAL 297/2019

[2021] HKCFI 3270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 297 of 2019

BETWEEN

	Rashpal 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 documents only; or
consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge Suffiad:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (‘the Director”) refusing the Applicant’s claim of non-refoulement protection.

2. The Applicant, born in 1975, is a national of India. The Applicant came to Hong Kong lawfully in May 2015 and was allowed to stay as a visitor until 7 June 2015. He overstayed in Hong Kong. By written application dated 23 March 2016 the Applicant indicated his intention to seek non-refoulement protection.

Applicant’s case

3. The facts of the case forming the basis of the Applicant’s non-refoulement claim are summarized at para [22 – 24] of the decision of the Board. In a nutshell, the claim was based on the fear that, if refouled, the Applicant would be harmed or killed by people of the Shiromani Akali Dal party (“SAD”) due to political disputes. The Applicant was born and raised in Malmohri Village (“Home Village”) in the province of Punjab, India. He is a Jatt Sikh. He lives with his wife, a daughter and his parents in his Home Village. The Applicant and his whole family are supporters of the Indian National Congress (“INC”), being one of the two major political parties in Punjab. The other major political party is SAD which is affiliated with the Bharatiya Janata Party (“BJP”). The Applicant has been an active member of INC since 2010 participating in party activities including doing preparation work for election rallies.

4. In the Applicant’s district, the INC is led by one Bikramjit Singh Sikki (“Bikramjit”). Opposed to Bikramjit is one Pinderpal Laddi (“PL”) who represented SAD in the region.

5. The Applicant supported Bikramjit and canvassed votes for him. Bikramjit won the 2014 election which infuriated PL and the SAD. As a result, PL and SAD did not like the Applicant resorting to hatred and violence at times against him.

6. In 2013, when the Applicant and a group of 20 to 25 INC members were putting up posters, a larger group of about 30 to 35 people with hockey sticks attacked them. The Applicant was beaten and sustained bruises to his body but no serious injuries. He saw a junior doctor at his home village and recovered after 10 to 15 days.

7. 6 or 7 months later, during the 2014 elections, the Applicant and some 10 other INC members were attacked by about 15 people when putting up posters. The Applicant escaped unscathed but other INC members were injured. The people from the SAD threatened to kill the Applicant in particular if he continued to spread negative message about SAD.

8. After the election, they hated the Applicant even more. In April 2015, a group of some 15 people from SAD went to the Applicant’s home to look for him. The Applicant’s father and brother blocked their way and were assaulted by the group while the Applicant escaped through the back door. The Applicant tried to report to the local police but they did not listen to the Applicant as the police were under the influence of SAD. The Applicant, however, did not know the identity of the attackers.

9. After the attack in 2015, the Applicant left his Home Village and hid in his uncle’s place some 50 km. away. After one month, the Applicant’s father told him that his “enemies” had located his whereabouts. The Applicant then left his uncle’s place and went to hide in the Amritsar Sikh Temple.

10. The Applicant then left India in May 2015 for Hong Kong and was able to pass through Indian immigration without problem.

The Director’s decision

11. By a Notice of Decision dated 9 April 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for the reason that the claimed risk of ill-treatment was assessed to be not real and unforeseeable and that there are no substantial ground to believe that the Applicant will be subjected to torture by PL and the SAD people if returned to India. The Director assessed that there were no substantial grounds to believe that the acts of PL and the SAD people were inflicted on the Applicant with the consent or acquiescence of the state or that the Indian government was in any way involved. The Director further found that the Applicant did not have any problems with the Indian police or government and had never been arrested, detained or imprisoned in India, and being free to depart India through the immigration authorities

The Board’s decision

12. The Applicant attended a hearing before the Board on 10 December 2018.

13. By a decision dated 25 January 2019, the Board rejected the Applicant’s appeal / petition and confirmed the decision of the Director.

14. At the hearing before the Board, the Applicant gave quite a different story.

15. The Applicant claimed there were altogether 3 incidents. The first incident took place in 2013 (not 2014 as earlier stated) and that some 20 to 25 people attacked the Applicant’s group of 10 to 12. The Applicant said that he did not suffer any injury on that first incident because the attackers did not wish to leave any visible injury on the Applicant.

16. In the second incident which was about 4 to 5 months after the first one, the Applicant said that he was the only one who was beaten up. The attackers did not threaten to kill him but only used abusive words.

17. As for the third incident, the Applicant told the Board that it happened in January 2015 when some 20 to 25 people came to his home. He said that his father and brother were not injured on that occasion but that his mother was assaulted by the group and suffered bleeding to her lips.

18. The Applicant further told the Board that he was a mere supporter of the INC but was not a member thereof.

19. On the credibility of the Applicant, the Board accepted as true his personal and family background and that he was a supporter but not a member of INC. The Board however found the Applicant vague, evasive and not to be telling the truth as to all other matters including the threats and attacks by PL and his people. The Board found no evidence to substantiate the suggestion that SAD was affiliated with BJP and did not believe that the Indian government would assist them to track down the Applicant to harm him.

20. The Board then made an assessment separately and distinctly on each of all the applicable grounds of torture risk, persecution risk, BOR 3 risk and BOR 2 risk and rejected the Applicant’s claim for non-refoulement protection on each of them.

21. The Board further found that the protection of the police will be available to the Applicant in his home district and if necessary, internal relocation is also available to the Applicant.

Discussion

22. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

23. When the Applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali[2018] HKCA 549. Therefore, while the court examines the decision of the Director and the Board, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

24. In the present case, the Board did not take issue with the personal and family background of the Applicant accepting them as true. The Board however disagreed with the Applicant on the assessment of risk rejecting the allegations of the Applicant in respect of the facts giving rise to such risks. The Board also found that police protection and internal relocation to be available to the Applicant based on the COI

25. It has been said time and again that the risk of harm and availability of state protection as well as internal relocation are primarily the province of the Board and the Director. It is not for this Court to usurp those functions of the Board. This Court will not interfere with the decisions of the Board unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

26. The present complaint raised by the Applicant in his affirmation in support of his Form 86, both dated 1 February 2019, contains nothing to indicate any error of law, procedural unfairness or irrationality of the Board. The Court can see no reasonably arguable basis to challenge the findings of the Board.

27. The decisions of the Director and that of the Board are plainly reasonable.

28. Having considered both the decision of the Director and the decision of the Board, the court cannot see any error of law, irrational findings or procedural unfairness. Nor can the court see any failure on their part to apply a high standard of fairness.

29. For the reasons given, there is no prospect of success in the Applicant’s intended application. Accordingly, the court refused to grant leave for judicial review.

Dated the 4^th day of November 2021

	(Allen LEE)
	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 4 November 2021 Rashpal 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 4 November 2021 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11214/18/4/224/IN2177 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 680/18 (formerly RBCZ 11417/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

RE RASHPAL SINGH

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