Re Dhillon Sukhwinder Singh

HCAL 728/2017

[2021] HKCFI 956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 728 OF 2017

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Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:  20 April 2021

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D E C I S I O N

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The application

1.The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). By Notice of Decision dated 19 February 2016 and Notice of Further Decision dated 11 April 2017 (“the Director’s Decisions”), the Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision dated 29 June 2017 (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decisions.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision. But his application was out of time unless time is extended by the Court. By Order dated 13 May 2020 (“the Court’s decision”), the Court refused to extend time for him to apply for leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.The applicant intends to appeal to the Court of Appeal against the Court’s decision. However, he is again out of time under Order 53, rule 3(4) of the RHC. He filed a summons on 1 February 2021 for extension of time for his appeal and for leave to advance new sole ground of appeal.

4.He has set out his grounds in support of this application as follows:

(1) he is being kept in custody serving sentence in the Tai Lam Correctional Institution;

(2) the court’s decision is not fair;

(3) he was not allowed to explain his situation;

(4) he is a litigant in person, illiterate and unrepresented and he is unaware of the legal procedures and time limit.

Discussion

5.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

6.In Re Adumekwe Rowland Ejike [2019] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued and the applicant has to identify any error on the part of the Judge in refusing to grant him leave to apply for judicial review. [23] The same rationales apply to this application.

7.The Court had, in its decision, set out the reasons why it refused to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. The applicant’s grounds in support of his application are that if he returns to India, he would be harmed or killed by the head of his village, Kamaljit Singh (“KS”) because he refused to join the Shiromani Akali Dal Party (“SAD”). KS had connection with the police in Punjab.

8.The Board found as follows.

(1) It did not believe KS and his people were interested in locating him all over India as he was only a supporter of the Congress Party. Killing him would not increase supporters for KS and to locate someone in India of such a vast population and continent would cost much to KS. He could also relocate himself to live somewhere else in India [18].

(2) State protection would be available to the applicant [30].

(3) The applicant’s credibility was adversely affected by the factors:

(i) he did not take the first opportunity of seeking protection and did so after two weeks of overstaying, section 37ZD(1)(c ) of the Ordinance;

(ii) he was dishonest because he overstayed; and

(iii) the conundrum why he should choose Hong Kong instead of other places in India and why he waited for two weeks before seeking protection from Police remained unsolved.

9.The Court had considered the grounds for his application for leave to apply for judicial review. The Court considered that even if his story were believed, state protection and internal relocation were options available to him. He is therefore not eligible for non-refoulement protection in Hong Kong.

10.The Court had considered the Board’s Decision and found that it was without fault.

11.His grounds for this application are not valid.

12.In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision. I refuse to extend time for his appeal. I also refuse leave for him to advance new ground, which remains undisclosed now. Accordingly, I dismiss his application.