GURPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

CAMP 572/2021

[2022] HKCA 605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 572 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 694 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 2 June 2021, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 1 December 2021, DHCJ Bruno Chan dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.  On 20 December 2021, the applicant filed the present summons with the Court of Appeal to appeal the Order made by DHCJ Bruno Chan dated 2 June 2021.

4.  The applicant is a national of India. He is 28 years old. He entered Hong Kong illegally on 7 July 2015 and was arrested by the police on the same day. He lodged his non-refoulement claim form on 25 April 2017 on the basis that he would be harmed or killed by his paternal uncles over some land disputes in his home village.

5.  By a Notice of Decision dated 22 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 23 February 2018. He was unrepresented and gave evidence in support of his claims at the hearing of the Board. The Board found that the applicant’s evidence was evasive and doubted the credibility of the testimony given by the applicant. It was also found that it would not be unreasonable for the applicant to relocate elsewhere in India. In any event, the Board found no basis that the applicant would face any risk of torture or persecution in India if he is returned there. Therefore, his appeal against the Director’s decision was dismissed by the Board on 13 April 2018.

The judge’s decision

7.  On 20 April 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. In his supporting affirmation, he put forward two grounds to challenge the Board’s decision, namely, the lack of legal representation and language assistance due to his lack of understanding of English.

8.  The application was considered upon an oral hearing on 29 April 2021 by DHCJ Bruno Chan. The judge held that following case authorities, there is no absolute right to legal representation for a non-refoulement claimant throughout such proceedings. The judge also found no merits in the applicant’s complaint as he was legally represented before the Director and had language interpretation before the Board. In any event, the judge considered there is no error of law, procedural unfairness or failure to apply high standards of fairness in the decision of the Board. Thus, the judge concluded that the intended judicial review has no prospect of success and dismissed his leave application on 2 June 2021.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his summons or his affirmation in support, save to state that the judge was wrong to refuse leave. The applicant has not submitted any written submissions as at the date of this judgment. Pursuant to the directions of the Registrar of Civil Appeals on 20 December 2021, the applicant is deemed to have abandoned his right to rely on written submissions.

Analysis and disposition

10.  In considering whether to extend time for appealing against a decision refusing 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.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 2 June 2021. The applicant took out a summons in the court below on 15 July 2021 and was late for almost one month. The applicant’s reason for the delay was that he received the decision late.

12.  We do not consider the reason for delay acceptable. As the courts have stated, it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

13.  As the applicant’s delay is inexcusable, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  In assessing the merits of the intended appeal, the court 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 decision of 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 it is a fresh application for judicial review.

16.  In the present case, the applicant did not put forward any reasonably arguable ground of appeal against the judge’s decision in refusing to grant leave for him to bring judicial review. He did not provide any particulars to show that the Board failed to apply high standards of fairness or acted in a procedurally unfair manner. He failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

17.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 2 June 2021 and dismiss the summons filed on 20 December 2021.