Re Lakhwinder Singh

CAMP 363/2022

[2022] HKCA 1668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 363 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 517 OF 2019)

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Before:  Hon Barma and G Lam JJA in Court

Date of Written Submissions:  6 October 2022

Date of Judgment:  23 November 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 To (“Judge”)  dated 12 April 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 25 January 2019.  In that decision, the Board rejected the late filing by the applicant of an appeal against the decision of the Director of Immigration (“Director”)  dated 15 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is an Indian national, born in 1994.  He came to Hong Kong in August 2015 after being refused permission to land in Macau.  When he was also refused permission to land in Hong Kong, he lodged a non-refoulement claim.  His claim was based on the fear that, if he returned to India, he would be harmed by a man named Sahib Singh, who was the head of his village, and also by the son of this man, Manjit Singh, because the applicant refused to abandon his political party, the Congress Party, and to join the Shiromani Akali Dal Party, as demanded by Sahib Singh.  The factual background of his claim was set out at [6] to [8] of the Board’s decision dated 3 February 2016.

3.The applicant’s claim was initially assessed by the Director with reference to three applicable risks, namely, BOR 3 risk,[2] persecution risk,[3] and torture risk.[4]  By notice of decision dated 12 October 2015, the Director decided against the applicant’s claim.

4.The applicant appealed against that decision and was heard by the Board on 18 January 2016.  In its decision dated 3 February 2016, the Board set out the questions raised with the applicant during the hearing and his responses.  It can be seen that the applicant declined to comment on a number of matters raised by the Board and that the hearing eventually came to a point when the applicant announced that he was not willing to answer any more questions from the Board or the Immigration Officer.  In the end the Board found the applicant’s evidence unsatisfactory and that there was no reliable evidence to show that he had supported or worked for the Congress Party or had done anything to achieve a political profile.  The Board could find no reliable evidence to show that Sahib Singh was the head of the applicant’s village or that Sahib Singh and his son had threatened the applicant and ill-treated him because he refused to join the Shiromani Akali Dal Party.  In the end the Board concluded that the applicant had failed to show any well-founded fear of the prescribed risks, and dismissed the appeal accordingly.

5.By letter dated 27 January 2017, the applicant was invited by the Director to submit additional facts that might be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk.[5] The applicant did not submit any additional facts.  By notice of decision dated 15 February 2017, the Director rejected the applicant’s non-refoulement claim with regard to BOR 2 risk.

6.The applicant filed a notice of appeal to the Board against the second decision of the Director, but it was only received by the Board on 25 April 2017, which was 1 month and 22 days after the statutory 14-day period allowed for appeal.  Pursuant to section 37ZT of the Immigration Ordinance (Cap 115), the Board proceeded to decide as a preliminary question without a hearing whether the application for late filing should be allowed.  The Board considered that the delay was serious and significant, and that the applicant had failed in his duty to provide the authority with an address to which correspondence and notice could come to his attention in a timely manner.  Accordingly, in its decision dated 25 January 2019, the Board rejected the late filing of the appeal.

The Judge’s decisions in the court below

7.On 22 February 2019, the applicant sought leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 25 January 2019 as well as the Director’s decisions dated 12 October 2015 and 15 February 2017 respectively.  The grounds advanced were summarised by the Judge in [27] of the CALL-1 Form as follows:

“ 27. The Applicant advanced the following four grounds for judicial review in his Form 86:

(1)  the Director and the Board reached the decisions wrongly; these decisions were not reasonable and fair;

(2)  the Director failed to give proper weight to the issue of state acquiescence; the Applicant was tortured at the behest of state enforcement agencies as well as those in the high ups of political circles;

(3)  the Director failed to take such argument and Country of Origin Information (“COI”)  supportive of the Applicant’s case into account and failed to give enough weight to the argument; and

(4)  the Director failed to attain the high standard of fairness.”

8.An oral hearing before the Judge was scheduled on 20 January 2022 but the applicant failed to attend it.  On 12 April 2022, the Judge issued his decision, refusing to grant leave to apply for judicial review.  His reasons were set out in the Form CALL-1 as follows:

“ 6. The decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[6]. The only decision which is relevant for this application is the Board’s 2^nd Decision.

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28. Except for the first ground, all these grounds were directed at the Director. For the benefit of the Applicant, these grounds are deemed to be directed at the Board as well. It is also immediately apparent that the second and third grounds are directed at the making of the 1^st Decision because state acquiescence and COI could have no place in the making of the 2^nd Decision in which the issue was whether the Applicant has a reasonable explanation for the late filing. The 1^st Decision is final and is now beyond the realm of judicial review. Even giving these grounds the widest possible interpretation, the issue raised by these grounds is whether the 2^nd Decision was reached as a result of errors of law, procedural unfairness or was Wednesbury irrational.

29. The Board correctly referred to section 37ZT(2)  of the Immigration Ordinance mandates the Board when deciding whether to allow the late filing to take into account (i)  the length of the delay; (ii)  the explanation for the delay; and (iii)  any other relevant matters of fact within the knowledge of the Board which would make it unjust not to allow the late filing. The Board’s finding that the Applicant was one month and twenty-two days late; that the delay was serious and significant (see paragraphs 8 to 16 of the 2^nd Decision); and that the delay was occasioned by his omission in informing the Immigration Department of his change of address (see paragraphs 17 to 21 of the 2^nd Decision)  are findings of fact. The conclusion that he has to bear the consequence of the delay in filing the NOA occasioned by his own omission is a consequence which necessarily follows as a matter of law (see: Karamjit Singh). These finding and conclusion are beyond the realm of judicial review.

30. The Board did not mention if it had considered “any other relevant matters of fact within its knowledge” before refusing the late application. Apparently, the Board could find no such relevant matters. As stated in paragraph 18 of its Decision, the circumstances mentioned by the Board are not exhaustive. The Board cannot be expected to list all its negative findings. The adjudicator of the Board is a well-qualified and experienced professional in non-refoulement matters. She must have borne in mind the high standard of fairness required in these proceedings and the notion that it would be unjust not to allow the late filing if there are merits in the Applicant’s intended appeal. In Re Madbar Abdul Salam[7], a decision not available to the Board until two years later, the Court of Appeal put it beyond doubt that the three-stage test in Begum includes a consideration of the merits of the intended appeal as part of the special circumstances whether it would be unjust not to allow the late application.

31. Out of abundance of caution, the Court called for the NOA from the Board. The grounds of appeal stated in the NOA by the Applicant consist of nothing but a regurgitation of his fears of harm and claims for non-refoulement protection which had been considered by the Director in his 1^st Notice and by the Board in its 1^st Decision. It contains nothing specific to BOR 2 Risk ground which is the subject matter for the appeal before the Board, if the late filing is allowed. The finding of fact by the Board in its 1^st Decision is final. Hence, there is nothing relevant in this regard known to the Board which would make it unjust not to allow the late filing.

32.   Having rigorously examined the 2^nd Decision, the NOA, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the application for late filing under section 37ZT of the Immigration Ordinance; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Applicant’s delay was serious and significant.  He failed to show he had exercised all due diligence to file the notice within time because of circumstances beyond his control.  The delay was occasioned by his own omission.  There were no special circumstances within the knowledge of the Board which would make it unjust not to allow the late filing.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  The Board’s 2^nd Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault. There were no such vitiating elements in the Decision. The Applicant advanced no arguable grounds in support of the intended judicial review.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was refused.”

9.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). 

10.On 27 June 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 said he did not receive the decision and did not know of the outcome until he was informed by the immigration officer on his reporting day.  As soon as he received the documents, he reached out to his friends for help.  The legal procedure was complicated, and he was not aware of the 14-day time limit for appeal.  He blamed the Judge for not making arrangements to enable him to understand the content of the judgment, and said that the court and authorities did not exercise caution and diligence in handling his case as a self-represented litigant.

11.On 14 July 2022 the Judge called for a statement from the applicant stating the details of his changes in residential address, dates of the reporting of the changes to the Immigration Department, and the grounds of the proposed appeal.  From the applicant’s statement delivered on 28 July 2022, the Judge found that the applicant did not receive the court’s decision because he had moved without informing the court of his change of address.  The Judge did not find this to be a valid explanation for the delay.  In his decision dated 9 September 2022,[8] the Judge dismissed the application as he considered that there was no prospect of success in the intended judicial review and that to allow such a challenge to proceed would bring prejudice to the intended respondent and to public administration.

The renewed application before this Court

12.On 21 September 2022, the applicant took out a summons seeking to set aside the Judge’s decision dated 9 September 2022 and seeking leave to file a notice of appeal.  Following the approach adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8], we shall treat the present application as a renewed application for extension of time for the applicant to appeal against the substantive decision of the Judge dated 12 April 2022 refusing to grant leave for judicial review. 

13.In his accompanying affirmation, the applicant said the Judge erred in not taking all the circumstances into account.  The applicant had been deprived of the opportunity to understand the judgments and raise proper grounds for appeal because of his lack of knowledge of English.  He had explained why he was late in filing the previous summons.  He had tried to seek help from different friends to lodge documents for his appeal.  He did not understand all the legal requirements and had to rely on others who did not understand them either.

14.In his written submissions dated 6 October 2022, the applicant essentially repeated what he had already stated in its affirmation.

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 two months, a substantial period of time.  For the reasons given by the Judge, there was no valid justification for the delay.  Accordingly, the applicant needs to show a real prospect of success in the intended 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, the Board rejected the applicant’s first appeal in 2016 because of the unsatisfactory nature of his evidence.  The applicant had the services of an interpreter at the hearing before the Board.  There was no application for judicial review to challenge the Board’s first decision.  The applicant was late in lodging his appeal against the Director’s second decision.  The Board gave full explanation of why it rejected the late filing of the applicant’s second appeal.  That decision lay within the province of the Board, and the court will not interfere with the Board’s conclusion unless it is vitiated on public law grounds.  The applicant had failed to show any reasonably arguable grounds for judicial review.  Furthermore, given the findings made by the Board in the first appeal and the absence of any additional facts submitted by the applicant before the second appeal, it seems to us that there was nothing in the substantive merits which should incline the Board towards accepting the late filing of the second appeal.

20.As can be seen from his decision, the Judge carefully examined the circumstances of the case before arriving at the conclusion that there was no reasonably arguable ground for judicial review.  The applicant has failed to show how the Judge has erred in refusing leave for judicial review. 

21.Accordingly, 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