Re Gursab Singh

CAMP 225/2022

[2022] HKCA 1271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 225 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2842 OF 2018)

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Before:  Hon Yuen and G Lam JJA in Court

Date of Judgment:  8 September 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”) dated 8 March 2022[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 22 November 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 8 February 2017 rejecting the applicant’s non-refoulement claim.

2.On 17 June 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.The applicant is an Indian national, born in 1992. He attempted to enter Hong Kong on 29 January 2014 but was refused permission to land. He lodged a non-refoulement claim the next day. On 11 May 2014, he was released on recognizance.

4.The applicant’s claim was based on the fear that, if he returned to India, he would be harmed by his maternal uncles who wished to snatch a piece of land belonging to his father which the applicant would inherit in future. The factual background of his claim was set out at [5] to [11] of the Board’s decision dated 29 December 2016 (“Board’s First Decision”).

5.The applicant’s claim was first assessed by the Director with reference to BOR 3 risk,[3] persecution risk,[4] and torture risk,[5] and by notice of decision dated 16 January 2015 the Director determined it against the applicant.

6.The applicant appealed to the Board against this decision of the Director. An oral hearing was held on 24 September 2015, during which the applicant gave evidence and was examined by the Director’s representative. The Board found that the applicant “adopted an evasive attitude in giving evidence” and that the discrepancies between the evidence given by the applicant at the Board hearing and to the Immigration Department respectively were so “numerous and fundamental” that his credibility was “completely undermined”. The Board concluded that the applicant’s evidence was not reliable and could not constitute a ground for believing that he would be in danger if he returned to India. The Board also found that State protection would be available if he returned to his country. Accordingly, in the Board’s First Decision, the Board dismissed the applicant’s appeal. The applicant did not take out any application for judicial review of the Board’s First Decision.

7.In January 2017 the applicant was notified by the Immigration Department that his claim would be further assessed with reference to BOR 2 risk,[6] inviting him to submit additional facts relevant to his claim on all applicable grounds. The applicant did not submit any further facts. By a Notice of Further Decision dated 8 February 2017, the Director rejected the applicant’s claim with reference to BOR 2 risk.

8.The applicant appealed again to the Board. The Board decided to deal with the appeal on paper and in its decision dated 22 November 2018, the Board concluded that the applicant had failed to make out a case under BOR 2 risk, and dismissed his appeal accordingly (“Board’s Second Decision”).

The Judge’s decisions in the court below

9.On 11 December 2018, the applicant sought leave from the Court of First Instance to apply for judicial review of the decision dated “20-11-2018”, which appeared to be a reference to the Board’s Second Decision dated 22 November 2018. This is confirmed by the applicant’s accompanying affirmation filed in support which exhibited a copy of the Board’s Second Decision. However, no ground for judicial review was set out, and the applicant’s affirmation simply asserted that the decision made by the Director was unfair and unreasonable, that the applicant’s life was in danger and that he might get killed if he was sent back to India.

10.Based on consideration of the documents alone, on 8 March 2022 the Judge refused to grant leave to apply for judicial review. The reasons were set out at [13] – [19] of the Form CALL-1 as follows:

“ 13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. 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.’

16. The Board had considered the facts and findings in its First Decision in addition to the materials submitted by the applicant in support of his appeal against the Director’s Second Decision. The Board had, therefore, taken a holistic view of the applicant’s case before making its BOR2 Decision.

17. The applicant does not have any valid ground to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

11.The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), counting from 12 April 2022 when the High Court Registry re-opened after the closure due to the pandemic. On 12 May 2022, he took out a summons to seek an extension of time to appeal against the decision of the Judge. In his supporting affirmation, the applicant simply said he was unrepresented and had no means to instruct a private lawyer, and asked the court to exercise its discretion to allow him to appeal out of time.

12.The Judge determined the application on paper without an oral hearing. In his decision dated 17 June 2022, the Judge dismissed the application as there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

13.On 30 June 2022, the applicant took out a summons seeking an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In his accompanying affirmation, the applicant repeated that he was unrepresented and did not have access to legal advice, and said he understood there was a good ground of appeal that had not necessarily been considered at the stage of applying for leave for judicial review. He did not, however, specify what that ground was.

14.Despite having acknowledged the directions for written submissions to be lodged, the applicant has not to date lodged any submissions for his application.

15.Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

16.Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), 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 for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of 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.

17.The applicant’s application to the Judge for extension of time to appeal was late by 16 days. The delay was not insubstantial and there was no explanation for it. The applicant needs to show a real prospect of success in the appeal in order for time to be extended.

18.In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, 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 of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

19.In the present case, in the Board’s Second Decision it rejected the applicant’s non-refoulement claim based on BOR 2 risk on the basis of its previous findings against the applicant’s credibility and reliability in the Board’s First Decision on the other risks. As such, the Board found that there was no real risk of harm in the event of refoulement. These findings are within the province of the Board, and the court will not interfere with such assessments unless they are vitiated on public law grounds.

20.The applicant has failed to show how the Judge has erred in refusing leave for judicial review, in light of the Board’s adverse findings on the applicant’s credibility and reliability which he has not specifically challenged. The applicant had failed to set out any grounds for judicial review.

21.As there are no grounds of appeal advanced that point to any error in the Judge’s decision, the appeal should be dismissed. Having considered the materials before us, we are of the view that the Judge’s observations are justified and that there is no reasonably arguable ground for judicial review. The Judge was right to refuse leave.

22.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 applicant’s summons is accordingly dismissed.

The Applicant, unrepresented, acting in person