Re Charn Kamal Singh

CAMP 257/2020 &
CACV 561/2020

[2021] HKCA 1222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 257 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 182 OF 2018)

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 561 OF 2020

(ON APPEAL FROM HCAL NO. 182 OF 2018)

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J U D G M E N T

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The Court:

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 3 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 19 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 11 March 2016 and 12 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India.  He entered Hong Kong on 30 December 2013 as a visitor and was permitted to remain until 13 January 2014.  He overstayed and surrendered to the authorities on 3 March 2014.  He lodged a non-refoulement claim on 1 April 2014. 

3.The applicant’s claim was based on threats arising out of a traffic accident involving the applicant.  The details of the applicant’s claim have been summarised by the judge at [1] to [4] of the CALL-1 Form.

4.By a Notice of Decision dated 11 March 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.By a Notice of Further Decision dated 12 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 19 September 2017, the Board dismissed the appeal on 19 January 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.In [73] of the Board’s Decision, the Board noted that after the first attack, there was no further attack upon the applicant and apparently no one looked for the applicant.  The Board found that he was unlikely to be subject to any of the proscribed risks of harm upon his return.  The Board also held that there was no evidence to suggest that the Indian government had any adverse interest against him.  The Board was also satisfied at [81] that internal relocation would be viable.

The judge’s decision

8.The applicant filed a Form 86 on 7 February 2018 which contained no ground for seeking relief.

9.In his affirmation in support of the leave application dated 7 February 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [10] of the CALL-1 Form:

(1)     irrationality in its failure to consider the concept of state acquiescence;

(2)     procedural impropriety in making insufficient inquiry and in failing to provide adequate reasons as to decision made;

(3)     procedural impropriety/unfairness in failure to investigate into COI of India;

(4)     irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(5)     irrationality in failure to consider a consistent system of human right violations;

(6)     irrationality in failure to consider if state protection exists in India;

(7)     irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8)     procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(9)     procedural impropriety in applying the incorrect standard of proof in rejecting the credibility of his claim;

(10)   irregularity of the decision-maker being a different person than the interviewing officer; and

(11)   no proper basis for consideration of internal relocation as his life would still be in danger if returned home.

10.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [15] of the CALL-1 Form:

“11. These are however all just broad and vague assertions of the Applicant containing various key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of state acquiescence to his claim, or why was it necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way did the adjudicator apply the incorrect standard of proof. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any legal error or procedural unfairness or irrationality in the decision being clearly and properly identified and elaborated by him, I do not find any of these grounds reasonably arguable for his intended challenge.

12. As for his complaint that his appeal before the Board was heard by someone different from his interviewing immigration officer, I fail to see any rationale for insisting that it be heard by the same person, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by his appeal being heard by an adjudicator from the Board. There is simply no basis or merit in this complaint of the Applicant either.

13. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Application for extension of time to appeal and grounds for appeal

12.Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 18 June 2020, the applicant sought leave to appeal out of time.  After considering the explanation offered by the applicant and the situation of the postal service and the High Court Registry, the judge granted extension of time to appeal on 8 September 2020.

13.The applicant failed to file a notice of appeal within 14 days as provided in the order dated 8 September 2020.  He only filed a Notice of Appeal on 19 October 2020 (CACV 561/2020), in which he stated:

“The [judge] did not give the correct decision. He just follow the adjudicator of the TCAB, so please check my case again.”

14.By a summons filed on 28 December 2020 (CAMP 257/2020), the applicant applied to this court for an extension of time to appeal.  In the summons he stated that:

“I want to appeal but in time limit was crossed. Please accept my application.”

15.In his affirmation filed on the same day in support of the application, the applicant deposed that:

“Extension of time as I missed to file my documents.”

16.In his skeleton submissions dated 18 February 2021, the applicant explained why it was unsafe for him to return.  He then submitted that:

“…My application was refused by [the judge]. I could not understand the reason of his decision. All over the world accept the refugee right. Hong Kong Bill of Right also give same right. But the High Court judge did not find any error of law.

Adjudicator could not find any problem for me in India, [the Director] also did not find any problem. But no one want to take my security risk. I will return if Hong Kong government directly talk to Indian government and Indian government give me guarantee for security of my life.

Indian government will not accept me and I will not return, so please grant my leave application.”

Discussion

17.Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 rule 14A. In addition to the documents filed for the application, we would also consider the documents filed in CACV 561/2020 in this application.

18.We are of the view that the applicant has not provided any reasonable explanation for the late filing of the Notice of Appeal.  We nonetheless go on to consider the merits of the intended appeal.

19.The applicant complained that the judge simply followed the Board’s Decision.  We note that the judge has in fact given detailed reasons at [11] – [15] of the CALL-1 Form in dismissing the grounds for judicial review advanced by the applicant. The judge also considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny and found no public law error ([14] of the CALL-1 Form).  This ground is totally without merit.

20.As for the rest of the grounds relied upon by the applicant, such as his alleged inability to understand the judge’s decision and his request for the Hong Kong government to discuss his case with the Indian government, those grounds do not relate to any error on the part of the judge and are therefore not valid grounds of appeal.

21.We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons filed on 28 December 2020 is dismissed accordingly.

22.We are also of the view that the application is totally without merit.  Pursuant to Order 59 rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

23.As we have refused leave to extend time, the Notice of Appeal in CACV 561/2020 is also struck out.

The applicant, unrepresented, acting in person