Re Parvinder Singh

CAMP 528/2021

[2022] HKCA 1756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 528 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 381 OF 2021)

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions:  6 December 2021

Date of Judgment:  25 November 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 4 June 2021, DHCJ To (“Judge To”)  refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). 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 24 June 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ Suffiad (“Judge Suffiad”)  on 10 November 2021. 

3.On 22 November 2021, the applicant filed a summons in CAMP 528/2021 (“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 22 November 2021, the applicant lodged his written submissions on 6 December 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 as a visitor on 20 February 2015 and subsequently overstayed. On 17 March 2015, he surrendered to the Immigration Department.  On 18 June 2015, he raised a non-refoulement claim alleging that if refouled, he would be harmed or even killed by local gangsters, one of whom had police and political affiliations.  The factual background of this case was succinctly summarised by Judge To at [4] – [5] of the JR Decision ([2021] HKCFI 1612).

7.By a Notice of Decision dated 5 June 2018, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.The applicant appealed the Director’s decision to Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The applicant failed to attend the oral hearing despite notice given to him.  No explanation was given for his absence.  Accordingly, the Board dealt with the appeal on the basis of the documents available.  

9.In a decision dated 20 October 2020, the Board dismissed the appeal.  The Board identified a number of serious concerns in the applicant’s case [26 - 32].  In gist, there were questions as to how an apparently simple robbery carried out by unknown gangsters could cause risk of torture or harm to the applicant, and how it could be said that one of the gangsters was affiliated to the police and/or political leaders.  However, there was no evidence from the applicant or the materials he submitted providing answers to these questions. The Board thus found at [33] that the applicant had failed to establish his factual claims and his non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.On 18 March 2021, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  The Applicant advanced the following grounds of application in his supporting affirmation:

(1)  The Decision was not reasonable and unfair.  The Adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence.

(2)  The Director failed to give proper weight to the presence of state acquiescence. He was tortured at the behest of state law enforcement agencies as well as those high up in political circles.

(3)  The Director failed to take such (the above)  arguments into account.

(4)  It was a clear case of unfair attitude shown by the Director.  The corruption and incompetency of the administration in the applicant’s country is still a very serious problem.  The Director failed to attain the high standard of fairness required by the Wednesbury test.

The JR Decision

11.The applicant attended an oral hearing on 18 May 2021.  Judge To refused leave for judicial review for reasons set out in [18] - [26] of the JR Decision:

“Ground (1)  – Unreasonable and unfair

18.  This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance and mentioning right to life and the extra-judicial killing which he would face if returned to India.  These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided he meets the criteria in any of the four applicable grounds under the USM.  The question is whether the Applicant meets those criteria.  The Board was of the opinion that the Applicant did not.  The Applicant disagrees and complains that the Decision was unfair and unreasonable.  Thus, this ground of application boils down to two points; namely whether the Decision was unreasonable and unfair, and whether the Board had given the Applicant sufficient time and chance to arrange the evidence. 

19.  The essence of the Applicant’s ground is that the Decision is unreasonable and irrational.  But he did not give particulars as to why the Decision is unreasonable and irrational.  At the hearing, he was asked to particularize in what way was the Decision unreasonable and unfair.  All that he could say were that he does not like the Decision; that his life is still in danger; and that the position is not in his favour.  

20.  The Board gave full reasons for its findings.  Basically, the reason is the Applicant failed to discharge the burden of proving his fears and risks.  He failed because he declined to attend the hearing of the Board to answer the questions to be raised by the Board and explain the reasons for his absence.  In his grounds of application for judicial review, the Applicant never disputed the Board’s allegation that he did not attend the hearing or gave any explanation why he did not or complained that he never received the notice of hearing.  The Board had serious concerns about the lack of details in the Applicant’s case.  It wished to ask him questions in a joint endeavour with him to establish his claims to non-refoulement protection. The Applicant’s absence and silence did not help remove those concerns.  The Board refused to accept what essentially are empty assertions and came to the conclusion that the Applicant was unable to discharge his burden of proof even to the relatively low standard.  The Board’s findings could not be criticized as unfair or unreasonable.

21.  As for the Applicant’s complaint that the Board did not give him sufficient time and chance to arrange the evidence, it is again another unsupported bald assertion.  The Director’s Notice was issued on 5 June 2018.  Within a week, he was in the position to lodge his Notice of Appeal with formulated grounds of appeal.  The oral hearing was scheduled to be heard on 20 July 2020.  In between, he had more than two years to arrange the evidence.  Besides, he must have submitted all evidence he had to the Director before the screening interview and the evidence was contained in the appeal bundle which basically consists of his non-refoulement claim form and submission and the transcript of the record of his screening interview.  If he considered he did not have sufficient time to arrange his evidence, he could have informed the Board or sought an adjournment at the hearing for him to do so.  It lies very ill in his mouth to say he did not have sufficient time when he chose not to attend the hearing and not to explain why he did not attend.  This ground has no conviction at all.

Grounds (2)  and (3)  – State acquiescence and torture at the behest of state law enforcement agencies 

22.  These two grounds may be dealt with together.  For the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well.  The Applicant complained that the Director failed to give proper weight to the presence of state acquiescence and the fact that he was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; and to take such argument into account.  The only torture or ill-treatment he ever received was the two assaults and robbery in which he suggested that one of the assailants was a gangster with police and political affiliations.  The Board precisely wished to ask him questions about this allegation in the joint endeavour to prove his case.  But he did not attend the hearing.  What was left of his evidence is just an empty assertion to which the Board was entitled not to attach any weight.  This ground is absolutely frivolous and vexatious.

Ground (4)  – Unfair attitude and breach of high standard of fairness

23.  Again, for the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well.  The Applicant argues that this was a clean case of unfair attitude shown by the Director (and the Board)  and their breach of the high standard of fairness required by the Wednesbury test.  He did not give particulars of unfairness and breach of duty.  In his favour, the Court assumed that included at least the failure to take into consideration the corruption and incompetency of the administration in his country in giving him protection for his safety. 

24.  For good reasons the Board found that the Applicant had failed to prove his fear and risk of harm was genuine.  On this finding, there is no factual basis to support his claims for non-refoulement protection on any of the four applicable grounds.  His claims were dismissed on that basis.  In other words, the Applicant is not at risk at all.  The Board did not find it necessary to consider availability of state protection and internal relocation.  It is only in respect of these two issues that corruption and incompetency of the administration may have relevance.  There is no substance in this ground.

Conclusion

25.  For the above reasons, none of the grounds advanced by the Applicant has substance.  In overall terms, the Applicant is in fact attempting to challenge the Board’s findings of facts under the guise of judicial review.  The role of the Court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

26.  On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria entitling him to non-refoulement protection on any of the four applicable grounds.   The Board gave reasons for its Decision.   These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s grounds for judicial review are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave was granted for the Applicant to file the application out of time; but leave to apply for judicial review is refused.”

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 24 June 2021 for an extension of time to appeal.  That was dismissed by Judge Suffiad on 10 November 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). 

14.As for (1), the applicant was late by 6 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  The delay was not substantial.

15.As for (2), the reasons for the delay, the applicant explained in his affirmation that he did not receive the JR Decision in time.  However, the court record showed that the JR Decision was sent on the same day it was handed down to the applicant’s last reported address, which he confirmed when he attended the hearing before Judge To on 18 May 2021.  However, since the delay was not substantial, the lack of reasons is not that pertinent. 

16.The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  In the Summons filed in this Court, he refers to a “sole ground of appeal” without stating it.  In his affirmation in support, he claimed Judge To did not give him the opportunity to clarify his case and the situation in India, so presumably this is the ground in question. 

17.In his written submissions, he quoted passages from ST v Director of Immigration[6][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and alleged that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance (Cap. 115).  However, he did not explain or elaborate how the legal authorities and provisions would apply to and assist his case.

18.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court would only examine the decision of the judge in light of the grounds advanced by the applicant.  As no viable ground is put forward to reverse the JR Decision, the appeal should be dismissed, see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. 

19.It is clear from the Board’s decision that the applicant had failed to substantiate his claim by his mere written assertions which lacked details and any factual basis to support his case.  It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  The application for leave before Judge To was not a rehearing at which the applicant could present evidence to plug the holes in his case before the Board. As the judge noted, the applicant had more than 2 years to collate evidence for presentation to the Board.  In any event, he did not seek to adduce any evidence before the judge. 

20.We are satisfied that Judge To had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.  

21.As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 22 November 2021.

The applicant, unrepresented, acting in person