Re Sakattar Singh

CAMP 112/2020

[2020] HKCA 1038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 112 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 662 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.This is the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 20 February 2019[1] refusing him leave to apply for judicial review. The applicant’s previous application for leave to appeal out of time was refused by Deputy High Court Judge Lung on 26 June 2020.[2]

2.The applicant had filed an affirmation, and also lodged a written submission in support of his application.

3.Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 22 March 2018 dismissing his appeal against the decisions the Director of Immigration (“the Director”) dated 25 August 2016 and 31 July 2017 rejecting his non-refoulement claim.

5.The applicant is an Indian national.  He arrived in Hong Kong on 30 March 2014 and was given permission to remain as a visitor until 14 April 2014.  He overstayed and was arrested by the police on 15 July 2014.  On 17 July 2017, the applicant raised a non-refoulement claim, which was set out in detail in the Director’s first decision and the Board’s decision and summarised by the Judge at [2] to [9] of the Form CALL-1 dated 20 February 2019. In gist, the applicant feared he would be harmed or killed by members of the Shiromani Akali Dal Party (“SAD”) arising out of a traffic accident that happened in January 2013 involving a car driven by him and another car driver by a policeman and carrying members of SAD.  Both the applicant and the other driver were badly injured in the accident while the four passengers in the other car were killed.  The applicant said that, after the accident, he was in a coma for one month and was hospitalised for six months.  He further said that SAD was very powerful as it was an ally of the ruling party in India, Bhartiya Janta Party. The applicant also said that both the SAD people and the police wanted to find him to take revenge.  Fearing for his safety, the applicant fled to Nepal for over a month before returning to India where he sought sanctuary in a Sikh Temple.  He later departed India for Hong Kong.

6.By two decisions dated 25 August 2016 and 31 July 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[3], BOR 3 risk[4] and persecution risk[5] grounds and the second decision dealt with the BOR 2 risk[6] ground.

7.The applicant’s appeal to the Board was heard on 12 January 2018.  By its decision dated 22 March 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s case implausible and did not accept it.  In particular, the Board noted that the applicant had changed his account, and considered it was implausible that he could have evaded revenge of SAD or the police in the six months that he was in hospital.  The Board found there was no real risk of the applicant facing any of the prescribed forms of harm if refouled, and that internal relocation was in any event reasonably available.  The Board concluded that none of the applicable grounds was made out.    

8.On 17 April 2018, the applicant filed a Form 86 together with a supporting affirmation to seek leave to apply for judicial review.  The grounds that the applicant relied on to seek relief were summarised by the Judge as follows (Form CALL-1 at [24] to [28]):

“24.  In Form 86 and his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

25.  The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information (“COI”); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof and failed to hold an oral hearing.

26.  The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.

27.  The Applicant further complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.

28.  Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.”

9.The Judge heard the application at an oral hearing held on 1 August 2018.  By his decision of 20 February 2019, the Judge refused to give leave to apply for judicial review, and gave his reasons at [34] to [48] of the Form CALL-1 as follows: 

“34.  It was incorrect for the Applicant to say that his claim had gone on appeal to the Board without the Director’s screening on BOR2 risk. The Director’s further decision dated 31 July 2017 was on BOR2 risk. He dealt with the issue sufficiently. The Applicant had not submitted additional facts to the Director for consideration. The Director need not hold further interview simply for BOR2 risk. The Director's further decision must be read in conjunction with his earlier decision dated 25 August 2016, where there was a clear analysis of the Applicant's case. It was also wrong for the Applicant to say the Adjudicator failed to hold an oral hearing. The Board hearing took place on 12 January 2018. The Applicant was present.

35.  The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 25 August 2016. He complained there were failures by the assigned duty lawyer. However, he failed to give specifics.

36.  The Applicant complained there was a lack of and/or insufficient legal representation. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

37.  The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

38.  The Applicant complained he received the appeal bundle only a few days before the Board hearing.

39.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board [9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme [10], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

40.  The Applicant said he received the appeal bundle on 5 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 12 January 2018. Thus, the bundle was served on the Applicant in time.

41.  The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

42.  A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

43.  The Applicant said he answered all the questions honestly in the Board hearing.[11] That would mean he knew well what was asked and how to answer. He was not confused.

44.  The Adjudicator did not accept the Applicant's claim that he faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. Therefore, state protection and internal relocation were not real issues in the present case. Nevertheless, the Adjudicator went on to consider that a person could avoid fear if he could reasonably relocate himself to a place where state protection would be available. He found that even if the Applicant really faced the risk he alleged, he could relocate himself safely to other parts of India. The Adjudicator viewed that state protection as well as internal relocation were available to the Applicant.

45.  The Adjudicator need not consider the issue of state acquiescence as he had found the Applicant failed to establish any risk that warranted non-refoulement protection. For the same reason, there was no necessity to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights.

46.  There was no evidence the Adjudicator had cherry-picked information or taken into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

47.  There was also no evidence the Adjudicator had misdirected himself in law or applied the wrong standard of proof.

48.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

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[9]  The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.

[10]  The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.

[11]  Form 86, Point 6 on page 20.”

10.The 14-day period for the applicant to appeal the decision of the Judge, as stipulated by Order 53, rule 3(4) of the Rules of the High Court, expired on 6 March 2019.  On 13 March 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  Deputy High Court Judge Lung dismissed the application on 26 June 2020.  

11.Under Order 59 rule 2B(3) of the Rules of the High Court, the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the refusal of leave by the Judge.  When the applicant filed the present summons to apply to this Court for leave to appeal out of time on 29 July 2020, he was more than two weeks late.  Under Order 59 rule 2B(6) of the Rules of the High Court, this Court may extend the time for making the application for leave to appeal.

12.In considering whether to extend the time for making an application for leave to appeal, the Court generally will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. 

13.The applicant was late by one week when he filed the summons to extend time in the Court of First instance.  He was late by more than two weeks when he filed the present summons to renew his application for extension of time.  In the affirmation in support of the present summons, the applicant had given no explanation for the two delays.

14.As to the merits of the intended appeal, the applicant gave the following as the proposed grounds of appeal: 

(1)  Deputy High Court Judge Lung was wrong in law in holding there was no state acquiescence or involvement.

(2)  Deputy High Court Judge Lung failed to provide detailed reasons in support of his decision.

15.It would appear that the references to Deputy High Court Judge Lung is erroneous.  The decision that the applicant intends to appeal was made by the Judge.  We would proceed on the basis that the applicant had intended to refer to the Judge in the proposed grounds of appeal. 

16.In his written submission, the applicant stated that his problem in India was true, and his enemy was very powerful.  He argued that the Director and the Board did not consider his claim properly.  He also said it was not possible for him to get documents from India to support his claim because anyone who helped him, if found out by his enemy, would be killed. 

17.For the reasons set out below, we are of the view that the applicant’s intended appeal has no reasonable prospect of success. 

18.First, the two proposed grounds of appeal are unarguable.  As the Judge pointed out at [45] of the Form CALL-1, the Board had not considered the issue of state acquiescence as the applicant was found to have failed to establish any risk that warranted non-refoulement protection.  Hence, neither the Board nor the Judge had made any decision on whether state acquiescence was involved.  Further, there is no basis for saying that the Judge did not give detailed reasons for his decision.  It is evident from the Form CALL-1 that the Judge had given full and detailed reasons that dealt with the grounds advanced by the applicant. 

19.Second, the matters raised in the written submission do not amount to viable grounds of appeal.  Assessment of credibility and the merits of the claim is a matter for the Director and the Board, who are the primary decision makers.  The Court’s focus on a judicial review application is the lawfulness and rationality of the primary decision makers’ decision and reasons and the fairness of the decision-making process. The Judge had looked at the Board’s decision and considered the applicant’s grounds for seeking relief.  For reasons that he gave in the Form CALL-1, the Judge considered there were no merits in the grounds put forward by the applicant.  We had examined the Board’s decision and the Judge’s decision and reasons. We agree with the Judge that the grounds relied on by the applicant to seek relief were unarguable.  We also see no proper basis for interfering with the Board’s conclusion on the credibility of the applicant’s claim. 

20.Having regard to the unexplained delays and the lack of merits in the intended appeal, it would be futile to extend the time for the applicant to apply for leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 29 July 2020.

The applicant, unrepresented, acted in person.