RE RAVINDER SINGH

CAMP 231/2022, [2024] HKCA 436

On Appeal From [2022] HKCFI 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 231 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 748 OF 2019)

________________________

________________________

________________________

DECISION

________________________

Hon Cheung JA (giving the Decision of the Court) :

1.  On 28 April 2023, this Court handed down decision ([2023] HKCA 604) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge K W Lung given on 31 March 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 16 May 2023, the applicant filed a notice of motion applying for leave to appeal this Court’s decision to the Court of Final Appeal. The applicant has also lodged a written submission on 29 May 2023.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our decision. We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  In summary the applicant stated the following in the notice of motion :

1)  The Judges were wrong for not applying the principle of procedural unfairness to the Director’s decision. The Director was required to give reasons justifying its decision;

2)  The Judges were wrong for not applying the principle of irrationality to the Director’s decision;

3)  There is error of law in the decision. The decision maker relied on Country of Origin Information which favour the rejection of the applicant’s claim;

4)  Actual life is situation different. The Courts prefer to ignore the overwhelming evidence of violence towards the minority ‘searching for unrealistic silver lining’;

5)  The Judge did not apply the law properly and procedural unfairness; and

6)  The applicant’s life is in danger in his home country. The applicant would be killed if he returns.

7.  In the applicant’s written submissions, he stated general non‑refoulement legal principle and statutory authority without specifying how they relate to the particulars of his case. They include the following :

1)  It is the applicant’s fundamental right not to be subjected to torture: ST v Director of Immigration [2014] 4 HKLRD 277;

2)  The decision has a significant effect on the applicant’s torture claim;

3)  High standards of fairness is required for determining torture claims: Secretary for Security v Prabakar [2005] 1 HKLRD 289;

4)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560D-G;

5)  The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

6)  The Court should not usurp the function of the Secretary;

7)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination: R v Home Secretary, Ex-Parte Bugdaycay [1987] 1 AC 514 at 531E-G;

8)  The applicant should be given every reasonable opportunity to establish his claim;

9)  The Adjudicator did not properly assess the applicant’s credibility;

10)  The Court has the power to interfere in a public body’s decision if it is Wednesbury unreasonable;

11)  The modified Wednesbury test is that of beyond the range of responses open to reasonable decision-maker: R v Ministry of Defense ex.p. Smith; and

12)  Late filing of notice of appeal to the Board may only take account of statement of reason and any other relevant matter: section 37ZT.

8.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal. Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

9.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, we, accordingly, dismiss the notice of motion.

Applicant, unrepresented, acting in person

CAMP 231/2022, [2023] HKCA 604

On Appeal From [2022] HKCFI 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 231 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 748 OF 2019)

____________________

____________________

____________________

D E C I S I O N

____________________

Hon Cheung JA (giving the Decision of the Court) :

I.  Factual background

1.  On 31 March 2021, Deputy High Court Judge K.W. Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) concerning his non‑refoulement protection claim.

2.  On 22 June 2022, the applicant’s application for extension of time to appeal against the said decision was dismissed by DHCJ K.W. Lung as there is no reasonable prospect of success in the intended appeal.

3.  On 6 July 2022, the applicant filed the present summons with the Court of Appeal seeking to extend time for appeal against the decision refusing leave to apply for judicial review.

4.  This summons is to be treated as a renewed application for leave to appeal out of time against the decision dated 2 August 2018: See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraph 3 to 8.

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

6.  The applicant is a national of India.  He is 48 years old.  He entered Hong Kong on 27 July 2013 as a visitor and was permitted to stay until 10 August 2013.  However, he did not depart and overstayed.  On 12 September 2015, he was arrested and lodged a non‑refoulement claim two days later.  He claimed that if refouled, he would be harmed or killed by Jail Singh (‘JS’) due to a land dispute.

7.  He claims to have inherited family land from his mother in 2011, and that since 2012, JS, who was politically influential, had been approaching the applicant for the sale of land for access to JS’s building, but the offer was rejected by the applicant.  The applicant claimed that in mid‑2012, he had encountered three attacks and threats from JS and JS’s associates due to his refusal to sell the land.  He suffered injuries and received medical treatments in the first and last attacks, and out of fear, he eventually fled to Hong Kong for protection.

II.  The Director’s decisions

8.  By a Notice of Decision dated 26 July 2019, the Director rejected the applicant’s claim on, torture risk, BOR 2 risk, BOR 3 risk, and persecution risk.

9.  The applicant appealed against the Director’s decisions to the Board.  An oral hearing was conducted on 15 February 2019.  The Board considered the applicant’s inability to recall crucial aspects of his claims to be strongly indicative of the fact that his claims have been totally fabricated.  The Board was not satisfied, having considered all of the evidence that the applicant father had deceased or that he had inherited any land from his mother, or that he had a dispute in relation to land.  The Board found that he was never threatened or harmed by someone called JS or any other persons in relation to this issue.  Given the circumstances, there are no substantial or strong grounds or a real risk or chance that the applicant would suffer harm amounting to torture, CIDTP/torture, a risk to his life or persecution upon his return to India due to a land dispute.  The board thus dismissed the appeal on 14 March 2019.   

III.  The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 18 March 201  9 for leave to apply for judicial review against the decisions of the Director and the Board.  His affirmation did not specify any grounds.

IV.  The Judge’s decision

11.  The judge was of the view that the applicant had not raised any valid grounds to challenge the Board’s Decision.  The Court found no error of law or procedural unfairness in the Board’s Decision, and the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational.  Given that there was no evidence to show that the applicant had any realistic prospect of success in his intended judicial review, the application was dismissed on 31 March, 2022.

V.  Grounds of intended appeal

12.  The applicant provided two grounds in his appeal :

1)  The DHCJ K.W. Lung was wrong in law in holding that there was no state acquiescence or involvement; and

2)  The DHCJ K.W. Lung failed to provide detailed reason in support of his decision.

13.  His written submissions comprised of quotes from various case authorities regarding standards of fairness, without any further elaboration.

VI.  Analysis

14.  In considering whether to extend time for appealing against 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.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The order was made on 31 March 2022.  The applicant took out a summons for leave to appeal out of time at the court below on 23 May 2022.  He was late by 36 days.

16.  In the court below the applicant’s reasons as set out in his affirmation for the delay was that he was illiterate, unrepresented, and unaware of the 14-day time limit and did not receive any correspondence from the Court.

17.  The applicant had not filed any notice of change of address for service to notify of any changes in his address.  According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post.  He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday.  He was therefore deemed to have received the Court’s decision on 1 April 2022.

18.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001]1 HKC 125.

19.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 

20.  In an appeal against refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal would only examine the decision of the Judge in light of the grounds advanced by the applicant.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

21.  In the present application, the applicant has not put forward any valid ground to reverse the Judge’s decision.  The applicant failed to show that he has any prospect of success in his intended appeal, and he has not adduced any evidence to refute the Board’s findings as to the crucial aspects of his claims of which he was unable to recall, that is a strong indication that his claim was in fact fabricated.  The applicant has failed to show that there is any reasonable prospect of success in the intended appeal.  Therefore, the summons filed on 6 July 2022 is dismissed.