Re Buta Singh

CAMP 210/2021

[2021] HKCA 1808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 210 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2547 OF 2019)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  2 December 2021

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J U D G M E N T

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

1.This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 11 June 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 1091). An earlier application for extension of time to appeal was refused by the Deputy Judge on 4 June 2021 (“the EOT Decision”)  ([2021] HKCFI 1522).

2.The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 29 August 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 19 December 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court (Cap 4A)  (“the RHC”).

Background

4.The applicant is a national of India.  He entered Hong Kong illegally on 20 March 2015 and subsequently raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his neighbours over their disputes with his uncle in their home village.

5.By a Notice of Decision dated 19 December 2017, the Director rejected the applicant’s non-refoulement claim.  His decisions covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.The applicant subsequently appealed against the Director’s Decision to the Board.  He attended an oral hearing before the Board on 22 July 2019 and gave evidence.  The Board dismissed his appeal on 29 August 2019 and confirmed the Director’s Decision.  Having assessed the evidence, the Board considered that internal relocation was reasonable and available and he would not face a real risk of any form of harm upon his return to India.

The Leave Decision

7.On 2 September 2019, the applicant filed a Form 86 for leave to apply for judicial review of the Board’s Decision.  In the Form 86, the applicant did not put forward any ground for seeking relief. In his affirmation of the same date, he only claimed that the authorities in his country would not protect him and that relocation would not be possible and safe but failed to provide any particulars or elaboration as to why they were so.

8.On 18 May 2020, the applicant filed an affirmation to request to withdraw his application because his problem had been solved in his home country and he would be going home.

9.By the Leave Decision of 11 June 2020, the Deputy Judge dismissed his application for leave to apply for judicial review given that there was no longer any basis for his non-refoulement claim and his problem at home had been resolved.

The EOT Decision

10.Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Deputy 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.

11.On 23 February 2021, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was eight months late.  The applicant attended a hearing on 25 May 2021.

12.By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal.  The Deputy Judge considered a delay of eight months to be very substantial for which the applicant only explained during the hearing that instead of returning to his country, he had a change of mind and decided to remain in Hong Kong and he was advised that he must appeal against the Leave Decision.  The Deputy Judge refused to accept his explanation as good reason for such a serious procedural breach.  As the applicant also failed to identify any error in the Leave Decision, the Deputy Judge held that there was no prospect of success in his intended appeal and it would be futile to extend time.  Accordingly, the EOT Summons was dismissed.

The Present Application

13.By a summons dated 9 June 2021, the applicant re-applied to this Court for extension of time to appeal against the Leave Decision.  In the summons and the supporting affirmation of the same date, he stated he was late in making his application due to a lack of knowledge and insufficient resources.  No viable ground of appeal was given.

14.In his written submissions lodged on 14 July 2021, the applicant asserted his life would become worse if he returned to his country and he was not satisfied with all the decisions given on his case.  He was not satisfied with the Board’s Decision as it ignored many things related to his case and the actual situation in his home country was very different from what the Board thought.  He further asserted that torture and deaths were so common in police custody of innocent people and there was police corruption and he could not get justice in a corrupted environment.

Discussion

15.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if an extension of time were granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.We agree with the Deputy Judge that that the applicant’s delay of eight months was very substantial and the applicant failed to provide any cogent explanation for the delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

17.In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15]. General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  His complaints are general and bare assertions regarding his fear if refouled.  They do not constitute viable grounds of appeal.  As repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: 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.As the applicant has failed to identify any proper ground of appeal, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the summons dated 9 June 2021 dismissed.

The applicant acting in person