Gurdev Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petiton Office

CAMP 231/2021

[2021] HKCA 1506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 231 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2282 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment: 26 October 2021

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JUDGMENT

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

1.By a summons dated 28 June 2021, the Applicant applied to this Court for “leave to appeal” against the order made by Deputy High Court Judge To (“the Judge”) on 8 June 2021 dismissing the Applicant’s summons dated 24 May 2021 for an extension of time to appeal the Judge’s earlier decision dated 14 April 2021 refusing to grant leave to apply for judicial review.

2.Having considered the Applicant’s summons and affirmation dated 28 June 2021, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.

BACKGROUND

3.The Applicant is a national of India.  He arrived in Hong Kong on 22 December 2013 and returned again on 27 December 2013.  He became an over-stayer since 11 January 2014.  On 18 February 2016, he surrendered to the Immigration Department.  He lodged a non-refoulement claim on 28 July 2016 on the basis that if refouled, he would be harmed or killed by a person called Balkar over a land dispute.  Details of the Applicant’s claim have been summarised by the Judge at §§4-12 of the CALL-1 Form ([2021] HKCFI 959).

4.By a Notice of Decision dated 9 February 2018, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk,[3] and persecution risk[4] (“the Director’s Decision”).

5.On 22 February 2018, the Applicant appealed the Director’s Decision to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”).  On 9 October 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board found, on the totality of the evidence, that the Applicant’s case not credible and nonsensical.  The Board gave full reasons for its conclusion and set out the inherent incredibility of the Applicant’s case.  Having considered the COI, the Board also concluded that even if the Applicant’s 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 were not genuine and he was unsuccessful in showing he was entitled to protection under any of the four applicable grounds.

6.On 19 October 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.On 14 April 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §29 of the Form CALL-1, the Judge stated as follows:

“The function of the in judicial review is not to re-assess the non-refoulement claim afresh. This court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. I have considered the Board’s Decision, the papers, grounds of application and the Applicant’s submissions with rigorous examination and anxious scrutiny. The Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM. The Board took great care in analyzing the evidence. It set out its reasons why it considered the Applicant not credible in ten pages. It concluded that there was no factual basis to support the Applicant’s claim of fear and risk on which his claim for non-refoulement protection under the four applicable grounds is founded. I find the Decision of the Board was utterly without fault. There were no errors of law or irrationality in its Decision or procedural unfairness. I find no substance in the grounds of this application. Accordingly, the application is dismissed.”

THE JUDGE’S EXTENSION DECISION

8.Under Order 53, Rule 3(4) of the RHC, the Applicant may appeal against the judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the Applicant within the 14-day period.  On 24 May 2021, the Applicant filed a summons for extension of time to appeal.  The Applicant gave no explanation for the 26 days’ delay (see [2021] HKCFI 1549 at §4).

9.Citing Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office [2020] HKCA 844, the Judge held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court would 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 (see [2021] HKCFI 1549 at §3).

10.The Judge found that there was no valid explanation for the substantial delay of 26 days (§§4, 16). The Judge also found that there were no viable grounds of appeal (§§12-14), and the proposed respondent would suffer prejudice if an extension of time to appeal was granted (§15).

11.Accordingly, on 8 June 2021, the Judge refused to extend time for the Applicant’s Appeal and dismissed his application.

THIS APPLICATION

12.By a summons dated 28 June 2021, the Applicant applied to this Court for leave to appeal against the Judge’s order of 8 June 2021.  In his summons and supporting affirmation dated 28 June 2021, the Applicant stated “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”.  This was the same ground raised by the Applicant and rejected in the Judge’s extension decision dated 8 June 2021 (§12).  The Applicant did not lodge any written submissions.

DISCUSSION

13.Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §3 – §8, we would treat the present application as a renewed application for extension of time to appeal.

14.In deciding whether to grant an extension of time to appeal, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time were granted.

15.The prospect of success of the intended appeal is important: the court will not grant extension to appeal for a hopeless appeal to be pursued, see Re Adumekwe Rowland Ejike [2019] HKCA 702 at §19.

16.The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.We consider the delay of 26 days to be substantial and the Applicant has not provided any explanation, or good explanation, for the delay.  Regarding the chances of the appeal, the Applicant has not shown any errors in the Judge’s decision to refuse to grant leave to apply for judicial review, or viable grounds of appeal in his summons or supporting affirmation. Repeated assertions that there is a “good ground of appeal” without providing any particulars do not constitute a valid ground of appeal.

18.Having carefully considered the documents before us, we consider that there is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

19.The application for extension of time to appeal is refused, and the Applicant’s summons of 28 June 2021 is dismissed.

The Applicant, acting in person