Re Brar Simranjeet Singh

CAMP 208/2021

[2021] HKCA 1480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 208 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1255 of 2018)

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Before: Hon Cheung and Chu JJA in Court

Date of Judgment: 15 November 2021

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JUDGMENT

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

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 15 March 2021 refusing his application for leave to apply for judicial review.

2.The applicant has filed an affirmation and lodged a written submission in support of his application.

3.Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against two decisions of the Torture Claims Appeal Board (“the Board”) dismissing his appeals against two decisions of the Director of Immigration (“the Director”) rejecting his non-refoulement claim.

5.The applicant is a national of India aged 26. He arrived in Hong Kong on 16 December 2013 and was refused entry by the Director of Immigration. On the same day, he raised a torture claim based on fear of being harmed or killed by a man named Raj Pal Singh over a land dispute. The details of the applicant’s claim were set out in the Director’s first decision at [6] and the Board’s first decision at [27] to [49]. We will not repeat them. Upon the commencement of the Unified Screening Mechanism in 2014, the applicant’s claim was processed as a non-refoulement claim.

6.By his decision dated 5 February 2016, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds.

7.The applicant’s appeal against the Director’s decision to the Board was listed for hearing on 7 October 2016. The applicant was absent at the hearing. By its decision dated 17 February 2017, the Board dismissed the appeal. The Board did not find the applicant’s claim to be genuine or credible. It did not accept there was a land dispute or that the applicant was threatened or assaulted as claimed. The Board held that the applicant failed to establish he faces a real risk of harm, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.Shortly afterwards, the Director assessed the applicant’s claim having regard to the BOR 2 risk[4] ground and by his further decision dated 19 April 2017 decided against it. Under section 37ZS of the Immigration Ordinance, the applicant had 14 days to appeal the further decision to the Board. The applicant filed a notice of appeal dated 1 August 2017, which was received by the Board on 4 August 2017, which was substantially out of time.

9.Section 37ZT(2) of the Immigration Ordinance requires the Board to determine as a preliminary decision without a hearing whether to allow the late file of the notice of appeal. Under section 37ZT(3), the Board may allow late filing of the notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing.

10.By its decision dated 15 November 2017, the Board refused to allow the late filing of the notice of appeal/petition, having found that there were no special circumstances that would make it unjust not to allow the late filing.

11.Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.

12.On 3 July 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decisions. The application was much more than three months from the date of the Board’s two decisions which were made on 17 February 2017 and 15 November 2017.

13.The Judge dealt with the application on paper. By a Form CALL-1 dated 15 March 2021[5], the Judge refused to extend time for the applicant to apply for judicial review and dismissed his application. In brief, the Judge considered that the application should be dismissed solely on the ground that the applicant provided no explanation for his delay. In any event, he considered the applicant’s grounds for seeking relief were not supported by the evidence and also lacked details. The Judge also found there was no error of law or procedural unfairness in the Board’s decisions, and the intended judicial review has no reasonable prospect of success.

14.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period for the applicant to appeal the Judge’s order expired on 29 March 2021.

15.By a summons filed on 3 May 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on papers and by his decision handed down on 26 May 2021[6] refused the application.

16.On 7 June 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

17.In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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.

18.The applicant was late by about four weeks, which is not insubstantial delay. In the affirmation in support of the present application, the applicant stated that he did not receive the court’s decision in time and he also lacked the means. There is however no elaboration or details given. We do not find the explanation satisfactory.

19.As for the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

20.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’s decision, 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.

21.In the present application, the applicant has put forward the following ground in his supporting affirmation:

“The decision made by [the Judge] has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.”

22.The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also made reference to the Wednesbury unreasonableness principle. It is said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim. It also complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility. The written submission further recited section 37ZT(2) of the Immigration Ordinance, which provides that when deciding whether to allow a late filing of notice of appeal, the Board may only take account of (i) the statement of reasons in the application for late filing and any accompanying documents; and (ii) any other relevant matters of fact within the knowledge of the Board.

23.In our view, the ground and the arguments put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision. The ground set out in the supporting affirmation is only a bare general statement, with no details or particulars. The ground is in any event unarguable. In the case of the Board’s first decision, a hearing for the appeal was arranged but the applicant failed to attend. As for the Board’s second decision, section 37ZT(2) of the Immigration Ordinance mandated the Board to decide on whether to allow the late filing of notice of appeal on the papers without an oral hearing.

24.As for the written submission, it was not shown how the cases cited and the legal propositions quoted in it relate to the applicant’s case. Other than setting out section 37ZT(2) of the Immigration Ordinance, the written submission did not explain its relevance to the applicant’s intended appeal.

25.We have also examined the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities in the Board’s two decisions. We agree that the intended judicial review has no reasonable prospect of success. The Judge was correct in refusing to extend the time to apply for judicial review.

26.As the applicant’s intended appeal against the Judge’s dismissal of the application for leave to appeal for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the summons filed on 7 June 2021.

The applicant, unrepresented, acted in person.