Sakatter Singh v. Director of Immigration

CAMP 82/2021

[2021] HKCA 1490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 82 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 315 OF 2018)

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Before: Hon Au and Chow JJA in Court

Date of Written Submission: 17 May 2021

Date of Judgment: 15 October 2021

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JUDGMENT

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Hon Chow JA (giving the judgment of the Court):

INTRODUCTION

1.By summons dated 12 March 2021, the Applicant applied to this Court for leave to appeal against the decision dated 5 February 2021 of Deputy High Court Judge Bruno Chan (“Deputy Judge”) refusing to grant to the Applicant an extension of time (“EOT Decision”) to appeal against the Deputy Judge’s earlier decision dated 23 June 2020 refusing to grant leave to apply for judicial review (“Leave Decision”). The intended judicial review was directed at the decision dated 22 December 2017 of the Torture Claims AppealBoard (“Board”) dismissing the Applicant’s appeal against the decision dated 7 August 2017 of the Director of Immigration (“Director”) rejecting his claim for non-refoulement protection.

2.Having considered the papers, we are of the view that it is appropriate to determine the summons dated 12 March 2021 without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

3.The 1^st Applicant is a national of India.  He entered Hong Kong as a visitor on 16 September 2015 with permission to remain until 30 September 2015.  He overstayed, and surrendered to the Immigration Department on 2 October 2015.  He raised a claim for non-refoulement protection on the basis that, if he were to return to India, he would be harmed or killed by his creditor for failing to repay his loan.  The factual details of the Applicants’ claim were summarized by the Deputy Judge at [2] to [4] of the Leave Decision ([2020] HKCFI 779).

4.By a Notice of Decision dated 7 August 2017, the Director rejected the Applicant’s non-refoulement claim.  His decision covered torture risk^[1], BOR 2 risk[2], BOR 3 risk^[3], and persecution risk^[4]. Taking into account all relevant circumstances, the Director assessed the risk of harm to the Applicant from his creditor upon his return to India as low. The Director considered that there was no official involvement in the matter, and state protection would be available to the Applicant.  On the basis of Country of Origin Information (“COI”), the Director further considered that internal relocation was viable.

5.The Applicant appealed the Director’s decision to the Board.  He attended a hearing before the Board on 24 November 2017.  The Board dismissed his appeal on 22 December 2017.  The Board found that the Applicant’s creditor had no intention of harming or killing him other than to pressurize him to repay the loan.  It further found that state protection was available and internal relocation viable.

THE LEAVE DECISION

6.On 28 February 2018, the Applicant filed a Form 86 to apply for leave to appeal for judicial review of the Board’s decision. His grounds for review, as set out in his supporting affirmation of 28 February 2018, were that the Board’s decision was unreasonable in that it failed to consider all the matters raised by the Applicant, and that it failed to give adequate reason for the decision.  By the Leave Decision, the Deputy Judge held that:

“10. These are however just broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Board … had erred in the decision, or in what way did the [Board] fail to take into account all the matters raised in his claim, or exactly how did the [Board] fail to give adequate reason … 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 being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12.  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 …”

THE EOT DECISION

7.On 3 September 2020, the Applicant applied for extension of time to appeal against the Leave Decision, as he was out of time by about 8 weeks.

8.In the EOT Decision ([2021] HKCFI 187), the Deputy Judge noted that the Leave Decision was sent to the Applicant by post but was subsequently returned undelivered.  When the Applicant was later contacted by telephone, he admitted that he had changed his address without informing the court.  The Deputy Judge held that delay was significant and that the Applicant was himself to blame for not receiving the Leave Decision on time.

9.With regard to the merits of his appeal, the Deputy Judge went on to hold that:

“7. More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons, or in his affirmation where he asserted to have good grounds of appeal but did not state what they are, and at the hearing of his summons he merely repeated his claim that he cannot go back to his home country as his problem is still there. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.”

APPEAL AGAINST THE EOT DECISION

10.By summons dated 12 March 2021, the Applicants sought leave from this Court to appeal against the EOT Decision.  No ground of appeal was indicated in the summons.  In his affirmation also of 12 March 2021, the Applicant stated that he was unrepresented and did not have access to any legal advice.  He also stated that it was his understanding that there was a good ground of appeal, without elaborating on any specific particulars.

11.In his written submissions dated 17 May 2021, the Applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  Lastly, he made reference to the matters that the Board should consider where there has been late filing of a notice of appeal.

DISCUSSION

12.As the Court of Appeal held in Farrukh Zaib [2020] HKCA 408 at [21], although it is technically possible to appeal against a lower court’s refusal of an application for extension of time to appeal, it is more appropriate to renew the application before this Court.  The Applicant’s summons of 12 March 2021 is therefore treated as a renewed application to this Court for extension of time to appeal against the Leave Decision given on 23 June 2020.

13.It was further held in Farrukh Zaib [2020] HKCA 408 at [22] that, in considering whether to extend time for appealing against a decision refusing to grant leave to apply for judicial review, the court will have regard to: (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.

14.In this case, the Deputy Judge correctly held that the Applicant was responsible for the delay in lodging his appeal arising out of his failure to inform the court of a change of his address.

15.Nevertheless, the Court would still examine whether there is merit in an intended appeal (Farrukh Zaib [2020] HKCA 408 at [23] to [24]).  In assessing the merit of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  General and bare assertions without any specific particulars are not proper grounds of appeal (Farrukh Zaib [2020] HKCA 408 at [28]; Re Mizan Sikder [2019] HKCA 20 at [17]).

16.Regarding the Applicant’s affirmation of 12 March 2021, there is no absolute right to free legal representation at all stages of non-refoulement claim proceedings (Secretary for Securityv Sakthevel Prabakar (2004) 7 HKCFAR 187 and FB v Director of Immigration HCAL 51/2007).  Being legally unrepresented or lacking access to legal advice, without more, is not a proper ground of appeal.

17.The Applicant’s understanding that there was a good ground of appeal, without any specific particulars, is not a proper ground of appeal either.  No valid ground of appeal can be found arising from the general propositions in the Applicant’s written submissions regarding the high standards of fairness required in the assessment of a non-refoulement claim or the reasonableness of a decision, or his bare assertion that the Board acted in a procedurally unfair manner without properly assessing his credibility, or his reference to late filing of a notice of appeal.

18.As the Applicant has failed to identify any proper grounds of appeal, there is no merit and no prospect of success in his intended appeal against the Leave Decision.  Extension of time to appeal is refused, and the Applicant’s summons dated 12 March 2021 is dismissed.

The Applicant, acting in person