Case Document

100%Judiciary

HCAL 2282/2018

[2021] HKCFI 1549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2282 OF 2018

____________

RE:

GURDEV SINGH

Applicant

____________

Before:

Deputy High Court Judge To in Chambers

Date of Decision:

8 June 2021

______________

D E C I S I O N

______________

Introduction

1.This is the Applicant’s application by summons dated 24 May 2021 for extension of time to appeal the order of this Court dated 14 April 2021 refusing his application for leave to apply for judicial review (the “Order”). He is 26 days late.

2.Under Order 53, rule 3(4) of the Rules of the High Court, 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. By 28 April 2021, the time to appeal has expired. The application for leave to appeal is 26 days out of time. The breach is serious, being more than double the time limit for appeal.

3.In Jagg Sing and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^{^[1]}, the Court of Appeal held that in considering whether to extend time for appealing 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.

Length of the delay and reasons for delay

4.The Applicant gave no explanation for the 26 days’ delay in appealing the Order in the summons. In his affirmation filed in support of the application for extension of time, he only stated: (1) the fact of his application; (2) that he is unrepresented and have no means to instruct a lawyer; (3) that he understands there is a good ground of appeal; and (4) his request for the Court to exercise its discretion to allow him to appeal out of time. He simply made the request for leave, as if the length of the delay is not a matter of concern.

5.Though the Applicant is acting in person, that is not a reason that he should be spared from having to comply with the necessary requirements before the court may exercise any discretion in his favour. In an appropriate case, the court could assist by giving him directions on how to perfect his application, including giving him time to file an affirmation stating his reasons for the delay and producing supporting documentary evidence. However, for reasons as will become obvious, I do not consider this necessary in this case.

The Applicant’s case and the finding of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”)

6.The Applicant is an Indian national. He entered Hong Kong as a visitor in December 2013 and overstayed. His claim for non-refoulement protection is based on his fear of being killed as a result of a land dispute with his neighbour, Balkar. His fear is premised on the assault on him by Balkar’s men in December 2012; the hit on his motorcycle in June 2013; the threat uttered to his family in December 2013; and the alleged murder of his cousin in May 2017.

7.The Board found the Applicant’s case not credible and nonsensical. It gave full reasons for its conclusion and set out the inherent incredibility of the Applicant’s case. Having considered the Country of Origin Information (“COI”), the Board found that even if the fear and risk were genuine, the Applicant could relocate himself elsewhere in India to avoid the risk. The Board concluded that the Applicant’s fear and risk are not genuine and that he was unsuccessful in showing that he was entitled to protection under any of the four applicable grounds under Unified Screening Mechanism.

The grounds for judicial review and decision of this Court now sought to appeal against

8.The Applicant’s grounds for leave to apply for judicial review may be summarized as follow:

(a) the Notice of Decision of the Director of Immigration (the “Director”) dated 9 February 2018 (the “Notice”) and the Board’s Decision dated 9 October 2018 (the “Decision”) are Wednesbury unreasonable and unfair;

(b) the Board did not give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim and his appeal;

(c) the Director failed in giving proper weight to his evidence about state acquiescence;

(d) the Director failed to give proper weight to the COI in his favour; and

(e) the Director showed an unfair attitude and failed to attain the high standard of fairness required by the Wednesbury test.

9.In respect of Ground (b), this Court held this is not a genuine ground[2]. He received the Director’s Notice rejecting his claim for non-refoulement protection on 9 February 2018 and was able to lodge his Notice of Appeal setting out his grounds of appeal on 22 February 2018. He never complained he did not have time to prepare the evidence before the Director’s screening interview. He never requested for time to arrange for the relevant evidence to be presented to the Board for the hearing of his appeal against the Notice. In his Notice of Appeal to the Board, he even said he will produce documents to prove his case is real, suggesting that he had the documents in his possession before the oral hearing of the Board. It was only ten days after receiving the Decision from the Board that he made for the first time his complaint of lack of time.

10.Grounds (c) and (d) were considered by this Court in paragraphs 23 to 27 of the Form Call-1. Basically, the Applicant complained about the weighting given by the Board to the conflicting COI. These are finding of facts by the Board. This Court held that there is nothing to suggest that the Board erred in law or was guilty of procedural unfairness or was unreasonable in coming to these findings.

11.Grounds (a) and (e) are duplicitous. The Applicant complained that the Board’s Decision was Wednesbury unreasonable and unfair, but gave no particulars. Hence, the Court deferred consideration of these two grounds after assessing his other grounds. In the end, having considered the totality of the evidence and the grounds asserted by the Applicant, this Court was unable to come to any view that the Decision was Wednesbury unreasonable and unfair.

Prospect of the intended appeal

12.The Applicant has not advanced any ground of appeal. In his supporting affirmation, he said:

“I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.”

He did not particularise what that “good ground of appeal” was. At least, it is clear that that ground had not been argued before this Court at the hearing of the application. Thus, he is not complaining that this Court erred in its decision.

13.As was held by the Court of Appeal in Nupur Mst v Director of Immigration[3], the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation is primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.The Applicant’s appeal is launched on the wrong basis as an appeal against finding of facts of the Board. He advanced no argument showing the Board or this Court had erred in law or committed procedural unfairness or that the Decision of the Board or the decision of this Court was Wednesbury unreasonable or irrational. He also sought to advance a new and unparticularized ground which this Court has no means of assessing its merits. This Court can only come to the conclusion that there is no meritorious ground of appeal. For this reason, it would serve no purpose to investigate the reasons for his delay in appealing the decision of this Court.

Prejudice to the respondent

15.As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time. But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. It is an abuse of legal process and would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

16.In summary, there is no valid explanation for the delay of a substantial length of time of 26 days. That is not necessarily fatal to the application for extension of time. But the absence of a good ground of appeal is. It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. For all these reasons, the application for extension of time to appeal is refused.