Re Gurmeet Singh

CAMP 498/2022, [2023] HKCA 771

On appeal from [2022] HKCFI 2527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 498 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 671 OF 2019)

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J U D G M E N T

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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 Lung (“the Judge”) dated 24 August 2022[1] which dismissed 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. By a letter dated 26 April 2023 which reached the Court on 2 May 2023, the applicant requested to withdraw all his case(s) because he wants to go home as soon as possible as his problem has been solved.

3.Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing. Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against the decision of the Torture Claim Appeals Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”), which rejected his non-refoulement protection.

5.The applicant is a national of India aged 42. He entered Hong Kong illegally and was arrested by the police on 17 January 2016. He later raised a non-refoulement claim based on fear of being harmed or killed by his paternal uncle due to a land dispute. The details of the claim were set out in [8] of the Director’s decision.

6.By a decision dated 16 March 2020, 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.

7.The applicant appealed the Director’s decision to the Board. An oral hearing was held on 8 January 2019, during which the applicant gave evidence and answered questions put by the Board. By its decision given on 7 March 2019, the Board dismissed the appeal. For the reasons set out in [22] of the decision, the Board found that the injuries he sustained from the attacks were not serious; his aunt had only uttered bare threats and there were only three attacks within five years, all of which indicate that there was no intention to cause him serious harm; and there was no evidence justifying his claim that the entire police force in the police station was corrupt. The Board concluded that the applicant had not made out a case where he needed non-refoulement. Notwithstanding that, the Board also assessed the applicant’s case under the applicable grounds and found that it did not meet the requirements. The Board further found that internal relocation options were reasonably available, which would negate or reduce any risks of harm faced by the applicant. The Board accordingly found the applicant failed to establish his entitlement to non-refoulement protection under all the applicable grounds.

8.On 11 March 2019, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. He did not put forward any ground for seeking relief. He only stated in his affirmation that he could not go back to his country because he had problems there.

9.The Judge dealt with the application on paper. By a Form CALL-1 dated 24 August 2022, the Judge refused to give leave for the applicant to apply for judicial review for the reasons he gave at [12] to [17] as follows:

“12. 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 applicant’s 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).

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

14. 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.”

15. The ground in paragraph 11 above is not a valid reason to challenge the Board’s Decision.

16. 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.

17. The applicant fails to show that he has any realistic prospect of success in his intended judicial review.”

10.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 14-day period for the applicant to appeal ended on 14 September 2022[6].

11.By a summons filed on 15 September 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 20 October 2022[7] refused the application.

12.Under Order 59 rule 14(3) of the Rules of the High Court, the applicant may within seven days of the Judge’s refusal make a renewed application for extension of time to this Court. On 28 November 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 leave application. The application was late by three weeks.

13.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.

14.The applicant was late by one day, which is a minor delay. In the supporting affirmation, the applicant explained that the delay was due to his lack of knowledge of the proper procedure and insufficient resources. Having regard to the fact that it is a minor delay, we will focus on the merits of the intended appeal, to which we now turn.

15.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].

16.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 primary decision maker afresh as if it is a fresh application for judicial review.

17.The applicant did not provide any grounds in his summons or affirmation. In his written submission, he stated that: (1) his life will be in danger if he were to return home as he has problem there; (2) life in his home country is different from what people think; (3) he has no ability to fight against his enemy and it is difficult for him to get justice because of corruption; and (4) he needs more time to stay in Hong Kong while people are helping him to solve his problem.

18.For the following reasons, we are of the view that the matters put forward by the applicant do not constitute viable grounds of appeal:

(1)  The Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness. However, in his Form 86 and supporting affirmation, the applicant had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Board. Further, the Judge, having scrutinised the Board’s decision, concluded that there was no proper basis to disturb it. In the circumstances the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.

(2)  We have separately considered the Board’s decision. Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities. We see no proper basis for disturbing the Board’s rejection of the applicant’s factual case and his findings that internal relocation options are reasonably available to the applicant.

19.For the above reasons, we agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

20.As 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, it would be futile to extend the time to appeal. In the circumstances and having regard to the applicant’s indication that he no longer wishes to pursue his application, we order that the applicant’s summons filed on 28 November 2022 be dismissed.

The applicant, unrepresented, acted in person.