Re Gill Fakir Singh

CAMP 243/2022

[2023] HKCA 141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 243 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2040 OF 2018)

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JUDGMENT

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Hon Chu VP (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 Bruno Chan (“the Judge”) dated 6 July 2021[1] refusing his application for leave to apply for judicial review.

2.The applicant has filed a supporting affirmation and also lodged a written submission to support his application.  

3.Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in this application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant is a national of India aged 27.  On 26 January 2016, he arrived in Hong Kong and was refused entry.  He subsequently entered Hong Kong illegally.  On 5 August 2016, he surrendered himself to the Immigration Department and raised a non-refoulement claim.  The applicant’s claim is based on his fear of being harmed or killed by his paternal uncle due to a land dispute.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

5.By a decision dated 8 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds. 

6.The applicant appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”).  The Board heard the appeal on 5 and 18 July 2018.  By its decision dated 6 August 2018, the Board dismissed the appeal.  Principally, the Board found the applicant’s evidence lacked internal coherence and consistency and did not have supporting details.  The Board considered the applicant had either fabricated his claim or exaggerated the nature of the dispute.  The Board found it was a personal dispute and there was no evidence that the uncle would seek to torture or kill the applicant, or subject him to any prescribed harm.  The Board did not consider he would face a real risk of suffering from the prescribed harm and concluded that none of the applicable grounds was made out.      

7.On 26 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant had not put forward any specific grounds for seeking relief. 

8.The Judge considered the application on paper and refused to give leave to apply for judicial review for the reasons set out in [10] to [13] of the Form CALL-1 dated 6 July 2021:

“10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. In the Applicant’s case, the Board rejected his claim essentially on its finding of no evidence of any real threats or ill-treatment ever inflicted by his uncle under any of the applicable grounds for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 51 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

9.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 decision within 14 days after it was made.  The time for the applicant to appeal the Judge’s decision expired on 20 July 2021. 

10.By a summons filed on 7 October 2021, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing on 21 April 2022, and by his decision given on 5 May 2022 dismissed the application.[6] 

11.On 12 July 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

12.In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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. 

13.The applicant was more than two months late, which is not an insignificant delay.  The applicant explained that he did not receive the Court’s decision and order.  The applicant also told the Judge at the hearing that at the time, due to severe pain in his right leg, his mobility was limited.  As the Judge pointed out, the Form CALL-1 and court order were sent to the applicant’s last reported address and it was not returned undelivered.  In the circumstances, we do not accept the applicant has satisfactorily explained the delay.  He will have to show that his intended appeal enjoys a real prospect of success.    

14.In assessing 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].

15.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.

16.The applicant did not provide any ground in support of his intended appeal in either the summons or the affirmation.  He merely asked for an extension of time to appeal.  In his written submission, the applicant stated that he left India because his life was under threat, yet his claim was dismissed by the Director and the Board.  He complained that they did not pay any attention to his claim, and the Judge’s decision was not correct.       

17.What was put forward by the applicant do not constitute viable grounds of appeal.  They are general assertions that do not identify any specific error in the Judge’ decision. 

18.We have separately considered the Board’s decision.  We do not discern any error of law, irrationality or procedural irregularity or unfairness.  We agree with the Judge that the intended judicial review has no prospect of success.             

19.In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 12 July 2022. 

The applicant, unrepresented, acted in person.

[1] [2021] HKCFI 1968

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[6] [2022] HKCFI 1192