Re Lakhwinder Singh

CAMP 267/2021

[2022] HKCA 737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 267 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 320 OF 2018)

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Before:  Hon Yuen and Au JJA in Court

Date of Written Submissions:  4 August 2021

Date of Judgment:  27 May 2022

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.On 3 June 2020, DHCJ K.W. Lung (“the Judge”)  refused to grant leave to the applicant for judicial review concerning his non-refoulement claim (“the JR Decision”)  and dismissed his leave application. Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 19 June 2020 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 12 July 2021.

3.On 21 July 2021, the applicant filed his summons in CAMP 267/2021 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.In compliance with the directions made by the Registrar of Civil Appeals on 21 July 2021, the applicant lodged his written submissions on 4 August 2021.

5.Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.The applicant is an Indian national.  He entered Hong Kong by air on 6 August 2014 but was not permitted to land.  On the same day, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or killed by members of the Shiromani Akali Dal Party (“SAD”)  in his locality because he was a member of the rival political party the Congress Party ("CP"), and he had a political dispute with them during the period of the Punjab Parliamentary Constituency Election held in 2014.  The factual background of this case was succinctly summarised by the Judge at [3] and [4] of the JR Decision ([2020] HKCFI 1011).

7.By a Notice of Decision dated 3 October 2014 (regarding claims based on torture, persecution and the BOR3 risk)  the Director of Immigration (“the Director”)  decided against the applicant’s claim (“the Director’s 2014 decision”).  In 2017, the Director invited the applicant to submit additional facts (if any)  in support of a claim based on the BOR2 risk. The applicant did not do so.  By a Notice of Further Decision dated 9 November 2017, the Director also decided against a claim based on the BOR2 risk (“the Director’s 2017 decision”).  Thus, the Director’s 2 decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.After the Director’s 2014 decision, the applicant lodged an appeal to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing which took place on 17 July and 6 November 2015.  The Board reserved its decision.  Subsequently, the Director made his 2017 decision.  It would appear that the applicant also appealed that decision to the Board as it was stated by the Board in its Decision at para.6 that the applicant “now appeals/petitions … the two decisions to the [Board]”.

9.By its decision dated 26 February 2018 (“the Board’s decision”), the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [19] to [30], the Board did not take issue on the applicant's story and on the basis of his evidence, it found that as the incidents of conflict had happened years ago and as SAD became the ruling party of Punjab in the election in March 2014, there was no reason for SAD to still regard the applicant as a political threat and to harm him upon his return to India.  As long as the applicant desists from taking any part in politics in his local area and/or relocates to other areas of India, he should be able to remain in complete safety in that country.  As to the alleged injuries suffered by the applicant during the fights in 2013 and 2014, the Board did not find that they had attained the level of minimum severity that would amount to torture.  For the aforesaid reasons, his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.On 28 February 2018, the applicant filed a Form No 86 to apply for leave to judicially review the Director’s and the Board’s decisions.  In his supporting affirmation, he advanced the following grounds:

(1)  no legal representation for his appeal to the Board;

(2)  no language assistance as he does not speak or understand English;

(3)  violation of high standard of fairness as set out in Sakthevel Prabakar v Secretary for Security (2004)  7 HKCFA 187;

(4)  he did not receive the Director’s letter inviting him to submit additional information for assessment of BOR 2 risk;

(5)  the Director did not explain his balance of exercise in adopting the Country of origin information when rejecting his claim;

(6)  the Board did not give any proper explanation for refusing his claim, in particular, the Board should not consider that if he desisted from taking any part in the politics of that area, he should be safe. The Board ignored the fact that he had political activities whilst he was in his country. The Board should have found that he was subject to persecution risk.

The JR Decision

11.The applicant attended an oral haring on 28 February 2019.  After due consideration, the Judge refused to give leave to apply for judicial review for reasons set out in [12] - [25] of the JR Decision:

“DISCUSSION

The Director’s Decisions

12.   In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13.   The applicant has not set out any exceptional circumstances.

14.   Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

15.   The applicant’s application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine.  I dismiss his application.

The Board’s Decision

16.   The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board. He disagreed with the Board’s Decision.

17.   It is obvious that the Board did not reject the applicant’s facts of his case. The question is on the application of the statutory provisions and the Conventions on the facts accepted.

18.   Grounds (1) fails as the Court of Appeal had held that the applicant had no absolute right of free legal representation on every stage of the proceedings. He had already had legal representation for the screening. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

19.   The Court of Appeal in Re Khan MD Omar [2019] HKCA 803 at paragraph 18 held that lack of language assistance is not a ground for judicial review.

20.   Ground (3) is his opinion without any evidence to support it.

21.   Ground (4) is his bare allegation. He confirmed that he had adopted this address for all letters. He received all other letters except the letter from the Director for further information for the assessment of BOR 2 risk. He offered no explanation for this situation. In the circumstances, this Court does not accept that he did not receive the said letter. The letter was deemed to be served on him at his last known address. In any event, he had not put up any particular further information at the hearing before this Court to demonstrate that with those additional information, the Director’s Further Decision might be wrong.

22.   Ground (5) fails because the Director had demonstrated in his Decision that he had considered the COI. He had his discretion to accept or reject the evidence in his assessment of the applicant’s case. Obviously, he had applied his common sense and professional knowledge in his determination.

23.   The applicant may have a point for argument that the Board should not rely upon his future conduct if he returned to India to determine that he would not be subject to persecution because he had taken part in political activities before. The rival party may target him for his previous political stance. However, the Board also found that he could relocate internally himself in other parts of India [31]. Even if the applicant were subject to Persecution risk under RC, he cannot apply for asylum if internal relocation option is available to him. The Court of Appeal in TK v Jenkins & Another [2013] 1 HKC 526 held:

‘On the question of internal relocation, if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT. [32]’

24.   Ground (6) therefore fails.

25.   The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

Application for extension of time to appeal the JR Decision

12.As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 19 June 2020 for an extension of time to appeal.  That was dismissed by the Judge on 12 July 2021. Hence, the Summons to this court.

Discussion

13.In considering whether to extend time for appealing, the Court 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 (although the lack of prejudice does not mean an extension will be granted).  As for (1), the applicant was late by 2 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was minimal.

14.As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he did not receive the JR Decision in time.  As the delay is minimal, we do not need to consider this.

15.The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  No grounds of appeal were provided.

16.In his summons, supporting affirmation and written submissions filed with this Court, he submitted that he had no legal knowledge and would not be able to provide proper grounds of appeal until language assistance is given to him.

17.We note that all the documents filed/lodged in the court including the supporting affirmation and the written submissions were written in English which indicates that either the applicant is himself conversant with the English language or that he has access to language assistance of his own if needed.  His allegation that he would not be able to provide grounds of appeal until a reasonable time after the JR Decision is translated or interpreted to him is evidently insupportable.

18.It is evident from paras. 18-26 of the JR Decision that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and we find nothing amiss in the JR Decision.

19.As the intended appeal is unarguable, it would be futile to extend time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 21 July 2021.

The applicant, unrepresented, acting in person