Bikram Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 544/2022, [2023] HKCA 624

On appeal from [2022] HKCFI 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 544 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 917 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 4 May 2022, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to seek leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.On 6 October 2022, the applicant filed a summons to seek to appeal against that decision out of time at the Court of First Instance. The summons was dismissed by the judge on 10 November 2022[2].

3.On 20 December 2022, the applicant filed a renewed application with the Court of Appeal seeking leave to appeal out of time and leave to adduce a new ground of appeal.

4.The applicant is a national of India. He sneaked into Hong Kong from the Mainland on 2 February 2014 and surrendered to the police on 17 February 2014. He lodged a non-refoulement claim on 20 February 2014. His claim was made on the basis that he will be ill-treated or killed by a gangster who believed that the applicant disclosed the whereabouts of his family which led to the death of the gangster’s brother. The applicant had committed a number of criminal offences in Hong Kong including theft and possession of dangerous drug for which he was sentenced to imprisonment.

The decisions of the Director and the Board

5.By a Notice of Decision dated 12 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6.The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 31 August 2017. The Board considered that the applicant’s case was not plausible, frank or consistent. The Board further found that the applicant’s enemies are non-state actors and their motive for inflicting ill-treatment could not be regarded as one of the refugee convention ground for non-refoulement even if the applicant’s allegations are accepted. The Board decided that the applicant’s claim failed on all applicable grounds and dismissed his appeal on 8 September 2017.

The intended judicial review

7.On 3 April 2019, the applicant filed a Form 86 and an affirmation in HCAL 917/2019 to seek leave to bring judicial review against the Board’s decision out of time. He only stated that he is not satisfied with the Board’s decision but did not put forward any specific grounds for his intended challenge.

The judge’s decision

8.DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The judge found that the applicant does not have any valid ground to challenge the Board’s decision. The judge also found there is no error of law or procedural unfairness in the Board’s decision. As there is no realistic prospect of success in the applicant’s intended judicial review, the judge refused to grant extension of time for the applicant to seek leave to bring judicial review and dismissed the application on 4 May 2022.

Grounds of intended appeal

9.The applicant stated his grounds of appeal in the written submissions which may be summarised as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

10.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

11.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 4 May 2022 and the applicant was late by nearly 4 months when he took out the summons at the court below on 6 October 2022, exclusive of the court’s summer vacation in August. He explained that he was unaware of the 14-day time limit and was not served with the court order regarding his judicial review.

12.The applicant sent a letter to court dated 1 April 2022 informing the court that he was at Castle Peak Bay Immigration Centre. The court sent the judge’s decision to the applicant by post to Castle Peak Bay Immigration Centre on 4 May 2022 but the mail was returned to the court by the post office. The court then obtained the applicant’s updated address from the Immigration Department and resent the decision to the applicant by post to the updated address on 24 May 2022. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). As the applicant did not file any notice of change of address with the court, the applicant’s explanation for the delay is not justifiable.

13.As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.In the present application, the applicant’s grounds are just bare assertions without particulars or evidence in support. In particular, the Board has given detailed reasons for the negative findings on the applicant’s credibility in the decision. The applicant failed to adduce any evidence to refute the Board’s findings. Furthermore, he failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision.

16.There is no prospect of success in the intended appeal. We therefore refuse to grant extension of time to appeal against the judge’s decision of 4 May 2022 and dismiss the summons filed on 20 December 2022.

The Applicant, acting in person