RE JORAWAR SINGH

CAMP 359/2022, [2023] HKCA 880

On appeal from [2018] HKCFI 813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 359 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 573 OF 2017)

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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 Woodcock (“the Judge”) dated 23 April 2018[1] refusing to extend time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission to support the application.  

3.  Under Order 59 rule 14A(1) 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 applicant’s summons and affirmation, 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 26.  He entered Hong Kong on 30 December 2011 and was permitted to remain for 14 days as a visitor.  He overstayed and was arrested by the police on 2 July 2013.  He was subsequently convicted of the offences of possession of an identity card relating to another person, breach of condition of stay by overstaying and taking unapproved employment, for which he was sentenced to a total of six months’ imprisonment.  In August 2013, he raised a non-refoulement claim base on fear of being harmed or killed by his paternal uncle due to a dispute over a piece of farmland.  The details of the applicant’s claim were set out in the first decision of the Director of Immigration (“the Director”) at [6].  We will not repeat them.     

5.  By two decisions dated 23 December 2015 and 1 December 2016, the Director rejected the applicant’s claim.  The first decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds and the further decision related to the BOR 2 risk^[5] ground. 

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board (“the Board”).  At the hearing held on 29 December 2016, the applicant gave evidence and answered questions from the Board.  By its decision dated 13 February 2017, the Board dismissed the appeal.  In gist, the Board considered that, even accepting the applicant’s claims, the dispute with the paternal uncle was a private dispute with no involvement of the government; only threats were uttered with no violence committed on the applicant; and there was no medical evidence to support the assertion that he suffered mental stress.  The Board also found that state protection and internal relocation options were reasonably available, which would reduce or negate any risks of harm that the applicant might face.  The Board thus concluded that the applicant failed to make out a case that he needed non-refoulement protection and rejected his claim.  Additionally, the Board pointed out that there were significant concerns over the credibility of the applicant’s claim, and was of the view that he was not a genuine non-refoulement claimant.  

7.  On 1 September 2017, the applicant filed a Form 86 together with an affirmation to apply for leave to apply for judicial review.  The Judge listed the case for an oral hearing on 27 March 2018, but the applicant failed to attend.  The Judge proceeded to deal with the application on the papers.  By the Form CALL-1 dated 23 April 2018, the Judge dismissed the application.

8.  Order 53 rule 4(1) of the Rules of the High Court, Cap. 4 provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s Form 86 is accordingly out of time by more than three months.  For the reasons given at [7] to [9] of the Form CALL-1, the Judge found there was no good reason for extending the time:

“7. The applicant has failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision, Order 53 Rule 4. He is, in fact 3½ months late. His notice of application does not seek an extension of time as relief as it should. He does give an explanation of sorts; he says he never received it in the post. On 28 August 2017 he went to the TCAB office in person to make enquiries and he received a copy of the decision. It would appear this is the date he first knew of the TCAB rejection of his appeal. He gives no explanation as to why he did not receive it in the post.

8. I have considered the legal principles for granting an extension of time for judicial review. The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

9. The delay is not insignificant and there is no good reason for extending time.  This is because his explanation for the delay is weak and the merits of the substantive application after a perusal of the papers are also weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.”

9.  The applicant relied on four grounds to support his application.  As summarised by the Judge in the Form CALL-1 at [18], namely (1) lack of legal representation before the Board; (2) lack of language assistance; (3) the Director did not give reasons for rejecting his claim under BOR 2 risk ground; and (4) the Director did not attend the appeal hearing before the Board.      

10.  The Judge rejected these grounds and her reasons are encapsulated in [20] to [25] of Form CALL-1 as follows:

“20. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed his claim the applicant received no further free legal advice or assistance. The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

21. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis.

22. The applicant’s second ground is also without merit. In it, he complains the duty lawyer service is saving costs and refused to translate his non refoulement claim form (“NCF”) despite his request for it. Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request. His NCF was completed by him with the assistance of a lawyer and interpreter. If there was any mistranslation of his claim in his interviews or NCF then it would have already come to light in the Director’s decisions and the TCAB decision. Since there is no complaint arising from those decisions his fear cannot be justified. He claims in his affirmation that some claimants made appeals with a copy of their translated NCF but does not specify that they were provided by the duty lawyer service. There is no merit in this ground.

23. The third ground submits the Director gave no reason for rejecting his BOR 2 risk. Even if I considered the applicant could seek leave to apply for judicial review of the Director’s decision out of time and as well as the adjudicator’s decision, there is no merit in this ground. The adjudicator considered the provisions of BOR 2 and whether the applicant would be subject to any risk of his rights under BOR 2 being violated in light of the assessment of his claim as set out in the Director’s decision dated 23 December 2015. There is no merit in this ground.

24. The last ground is perhaps a misunderstanding by the applicant; the fact no one attends the hearing from the Immigration Department does not mean it is not a formal appeal. Written submissions would have been submitted in advance and attendance of a representative for the Director excused by the adjudicator. There is no merit in this ground.

Conclusion

25.  If I am wrong and should have granted the applicant an extension of leave to file his application, then I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  This applies to the Notice of Further Decision from the Director.  In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave to apply for judicial review is refused.”

11.  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. 

12.  By a summons filed on 5 January 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge To dealt with the application on paper, and by his decision handed down on 14 April 2022[6] refused to extend the time for appeal. 

13.  On 20 September 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.  

14.  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. 

15.  The applicant was out of time by over three years.  This is a very serious delay.  In his affirmation filed in the court below, he explained that he was ignorant of the time limits and he did not receive the Form CALL-1.  In respect of the former explanation, this is not a justifiable reason for the very serious delay.  As to the latter explanation, Deputy High Court Judge To had helpfully summarised the position in [11] of his decision as follows:

“11. Piecing the information in the Applicant’s statement together with the Court’s record and incontrovertible evidence, the following facts emerged.  The Order and Call-1 Form were sent to the Applicant on 23 April 2018 at his address in Shanghai Street (the “Shanghai Street address”) which he provided to the Court in January 2018.   The Order and Call-1 Form were never returned to the Judiciary through the post.  According to the tenancy agreement he produced to the Court, his tenancy of the premises at the Shanghai Street address commenced on 1 February 2018 and would terminate on 31 March 2019.  He never reported his recognizance to the Immigration since 2018.  He was detained in Castle Peak Bay Immigration Centre since 13 December 2021.  He could not have informed the Immigration Department of his move from the Shanghai Street address, if in fact he had moved.  In any event, it is not his case that he had moved from the Shanghai Street address when the Order was issued; and there is no evidence that he had reported his change of address to the Immigration Department or to the Court.  The inference that he had received the Order and Call-1 Form to be raised from these facts is so strong as to make his assertion that he had never received them incredible.   I do not accept his evidence that he had never received the Order and Call-1 Form.  There is therefore no explanation for the delay of about three years and eight months in filing an appeal.”

16.  Like Deputy High Court Judge To, we do not accept the very serious delay has been satisfactorily explained by the applicant.  In the circumstances, the applicant must show that his intended appeal enjoys a real prospect of success.

17.  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].

18.  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.

19.  The applicant did not provide any grounds for his application or the intended appeal in either the summons or the supporting affirmation.  He merely requested the Court to allow his application for leave for judicial review.

20.  In his written submissions, the applicant stated that he had serious problems and his life is threatened in his home country.  He said that his enemy was very influential and wealthy and would pay the police and the authority to help him.  He also asserted that there were many errors in the processing of his case and would like to appeal to the Court of Appeal.  There was however no elaborations or particulars in support of the assertion.

21.  What was put forward by the applicant does not amount to viable grounds of appeal.  The assertions are general and vague without any supporting particulars.  More importantly, he has failed to point to any error in the Judge’s reasons and her refusal to extend the time for the judicial review application and dismissal of his application for leave to apply for judicial review.  There is thus no proper basis on which this Court may disturb the Judge’s decision.

22.  In any event, we have separately considered the Board’s decision.  We do not discern any viable ground to disturb the Board’s decision.  We agree that the intended judicial review has no prospect of success and the Judge was correct in refusing to extend the time for applying for judicial review.          

23.  As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 20 September 2022.