Re Badal Singh

CAMP 444/2021

[2022] HKCA 601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 444 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1832 OF 2018)

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Before: Hon G Lam and Chow JJA in Court

Date of Written Submissions: 22 October 2021

Date of Judgment: 4 May 2022

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 13 July 2020[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 17 August 2018. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 18 January 2016 and 10 May 2017 rejecting the applicant’s non-refoulement claim.

2.On 4 August 2021, the Judge refused to extend the time for the applicant to appeal against the Judge’s decision of 13 July 2020.[2]

Background

3.The applicant is an Indian national. He arrived in Hong Kong on 15 November 2013 and was permitted to remain as a visitor until 29 November 2013. However, he did not depart and has overstayed. He was arrested by police on 3 January 2014, who referred him to the Immigration Department on 4 January 2014. The applicant raised his non-refoulement claim on 5 January 2014.

4.The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his paternal uncle Mulakh Raj, due to a land dispute, and also a series of fights in which the applicant injured Mulakh and broke the legs of one of Mulakh’s nephews. The factual background was summarized at [5] to [22] of the Board’s decision.

5.By notices of decision dated 18 January 2016 and 10 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The former covered BOR 3 risk,[3] persecution risk,[4] torture risk,[5] while the latter covered BOR 2 risk.[6]

6.The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 21 February 2018, during which the applicant gave oral testimony. The Board accepted that the applicant’s father had land disputes with the uncle and that there were certain fighting incidents as a result. However, the Board found that the applicant had only received oral threats and not suffered any severe pain or suffering from those incidents, and that the uncle was not as powerful as the applicant alleged. The Board concluded that there was no real risk of harm in the event of refoulement, and that reasonable state protection was available if the applicant made a report. In the result, in its decision issued on 17 August 2018 the Board dismissed the appeal in respect of all applicable grounds.

The Judge’s decisions in the court below

7.On 4 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision. In the applicant’s supporting affirmation, he simply stated that he wished to protect his life and stay in Hong Kong until his problem was solved. He did not raise any specific grounds for judicial review.

8.Following a hearing on 24 October 2019 attended by the applicant, on 13 July 2020 the Judge refused to grant leave to apply for judicial review. The reasons were set out at [13] – [14] of the Form CALL-1 as follows:

“ 13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are 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.’

14. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

9.The applicant failed to appeal the Judge’s decision within the 14-day period prescribed by Order 53, rule 3(4) of the Rules of the High Court (Cap 4A). On 5 August 2020, he took out a summons to seek an extension of time to appeal. In the summons and his supporting affirmation, he explained that he received the decision but he could not come to the court to appeal in time because he was feeling sick. However, he did not specify any proposed grounds of appeal.

10.Disposing of the summons on the papers without a hearing, on 4 August 2021, the Judge refused to grant extension of time to appeal, as he did not see any prospect of success in the intended appeal, and dismissed the summons.

The renewed application before this Court

11.On 8 October 2021, the applicant took out a summons seeking an extension of time from this Court to appeal against the Judge’s refusal of leave for judicial review. In the summons and his supporting affirmation, the applicant did not state any reason for requiring an extension, other than that he did not appeal in time and the Judge refused an extension.

12.The applicant lodged his written submissions on 22 October 2021, in which he reiterated some of the background facts of his claim, and alleged that his uncle is the leader of the extremist wing of the ruling BJP in India (Bharatiya Janata Party). However, he did not raise any proposed grounds of appeal.

Discussion

13.Pursuant to Order 53 rule 3(4), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time, the court will have regard to: (1) the length of the delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

14.In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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 the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

15.The applicant’s intended appeal was late by 4 days, not counting the court’s Summer vacation period in August. Since the delay was short, we have proceeded to decide the present application on the basis of the merits of the intended appeal.

16.In the present case, the Board rejected the applicant’s non-refoulement claim due to its finding that the applicant had not suffered any severe pain or harm of the requisite level. As such, the Board found that there was no real risk of harm in the event of refoulement. The Board also found that that reasonable state protection was available. These findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. The applicant has not raised any viable public law grounds to impugn them.

17.The Judge was correct to conclude that there was no reasonably arguable ground for judicial review, and was right to refuse leave for judicial review. The applicant has advanced no grounds that point to any error in the Judge’s decision.

18.For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The summons of 8 October 2021 is dismissed accordingly.

The Applicant, unrepresented, acting in person