RE BRAR PRITPAL SINGH

CAMP 337/2021

[2022] HKCA 1543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 337 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1311 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  By a summons dated 12 August 2021, the applicant applied to this Court for “leave to appeal out of time” against the order of the Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 25 March 2021, whereby the Deputy Judge refused his application for leave to apply for judicial review ([2021] HKCFI 752) (“the Leave Decision”). By the decision dated 2 August 2021 the Deputy Judge also refused the applicant’s application for extension of time to appeal ([2021] HKCFI 1958) (“EOT Decision”).

2.  The intended judicial review was directed at the decisions of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) respectively dated 2 March 2016 (“the Board’s 1^st Decision”) and 14 June 2018 (“the Board’s 2^nd Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of India.  He entered Hong Kong on 9 September 2015 and was refused permission to land in Hong Kong on the same day.  He raised a non-refoulement claim by way of written representation on 9 September 2015, on the basis that if refouled, he, being a supporter of the Indian National Congress (“INC”), would be harmed or killed by Joginder Singh Gill (“JSG”), his son and their associates from the opposing Shiromani Akai Dal Party (“SAD”) because of his refusal to join their party.  The applicant alleged that JSG had threatened to kill him after the election if the applicant did not vote for him.  He was also afraid of being arrested by the police from Baja Khanna Police Station and put into jail as he had been falsely accused by Joginder of possession of dangerous drugs.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision. 

5.  By a Notice of Decision dated 20 November 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non‑refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR3 risk^[2] and persecution risk^[3].

6.  The applicant appealed against the Director’s 1^st Decision and attended an oral hearing before the Board on 11 February 2016 with the assistance of an interpreter.  His appeal was dismissed by the Board on 2 March 2016.  In essence, the Board found that there was no or no reliable evidence to show that the election of the Village Head as alleged by the applicant and that his story was not plausible and / or credible.  The Board also noted that many of his material assertions did not have any objective support.  Having assessed the evidence, the Board considered that the applicant had failed to show that he had a well-rounded fear of persecution or that there was a real chance that the claimed fear of persecution would materialise.  The Board also found that the applicant had not shown a genuine and substantial risk of being subjected to the alleged mistreatment.  Having assessed the evidence, the Board found that the applicant had failed to show that he is at risk of severe mental and / or physical pain and / or suffering.  The Board also found that there was no reliable and / or plausible evidence to show that there had been acquiescence or failure of due diligence on the part of the police.  Accordingly, the Board dismissed his appeal and affirmed the Director’s 1^st Decision. 

7.  Subsequently, the applicant was invited by the Director on 2 February 2017 to submit additional facts, if any, on or before 16 February 2017 in relation to the assessment of his non-refoulement claim under all applicable grounds including the BOR2 risk[4].  As the Director received no reply from the applicant by the stipulated deadline, by a Notice of Further Decision dated 20 February 2017 (“the Director’s 2^nd Decision”), the Director took into account all the facts previously submitted under the Unified Screening Mechanism and further rejected the applicant’s non‑refoulement claim on the basis of the BOR2 risk.

8.  The applicant lodged a Notice of Appeal (“the BOR2 NOA”) to the Board by post which was received by the Board on 26 April 2017.  By then, he was late for around one month and 18 days.

9.  On the 14 June 2018, by way of the Board’s 2^nd Decision, the Board rejected his application for the late filing of his Notice of Appeal. The Board took into account his explanation as to the late filing[5] as stated in section 5 of the Notice of Appeal to the Board.  After seeking clarifications from the Director, the Board also noted that the applicant had not informed the Immigration Department of his change of address on time and he also did not adduce any documentary evidence to the Board.  The Board took into account the seriousness and significance of the breach, all the explanations put forward by the applicant and considered the relevant legal principles when it considered and evaluated the circumstances of the case.  The Board was thus satisfied that the late filing of the applicant’s Notice of Appeal could be justly rejected.

The Leave Decision

10.  On 6 July 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s 2^nd Decision.  The applicant did not specify any ground of review in his Form 86 and in his supporting affirmation.  As the applicant’s BOR2 risk has to rely upon the facts of the Board’s 1^st Decision and the applicant’s application will succeed if any one of the risks claimed sustains, the Deputy Judge was of the view that he had to take into consideration of the Board’s 1^st Decision and on the Court’s own motion added this relief in the applicant’s Form 86.[6]

11.  As the applicant did not ask for a hearing, the Deputy Judge dealt with his application on paper.

12.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [15] ‑ [23] of the Leave Decision:

“The Board’s 1^st Decision

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

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… …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.’

17. Basically, the Board did not accept the facts in support of his claim. Therefore, he does not have any factual basis in support of his claim.

18. His ground in support of this application does not assist his application.

19. 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.

The Board’s 2^nd Decision

20. When the Board considered whether time should be extended for him to file his Notice of Appeal against the Director’s Further Decision, it did not have the benefit of the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019:

‘17. Where a notice of appeal to is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.’

20. … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.’

21.     Although the Board had not stated that it had re-considered its 1^st Decision, it is obvious that it had confined its consideration to the factors under section ZT(2)(a) and (b) of the Ordinance, viz. the reasons for the delay and any other relevant matters of fact within the knowledge of the Board. The Board’s 1^st Decision is clearly before it when the Board considered the applicant’s application for extension of time. The Board had taken into consideration the seriousness or significance of the failure to comply with the rules. [19]

22. Since the applicant has given no additional information in support of his appeal against the Director’s Further Decision, his evidence on the facts of his case had been rejected by the Board in its 1^st Decision. Under such circumstances, there is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

23. I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

13.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14‑day period.

14.  On 26 May 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over one month late with his intended appeal.  In his supporting affirmation, he claimed that the Leave Decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his country.  He further claimed that he was a litigant in person, illiterate and unrepresented, he was unaware of the 14-day time limit.  He also did not receive any correspondence from the Court that the judicial review be refused and requested the Court to allow his appeal out of time.

15.  By the EOT Decision, the Deputy Judge noted that the applicant had not been able to identify in what respect the Board had erred in its decisions.  As the applicant was unable to show that he had any reasonable prospect of success in his intended appeal against the Court’s decision, the Deputy Judge refused to extend time for his appeal and dismissed his application.

The Present Application

16.  By a summons and supporting affirmation both filed on 12 August 2021, the applicant reapplied for extension of time to appeal against the Leave Decision.  In his summons, he requested for leave to advance a new sole ground of appeal without stating what the intended ground of appeal was.  In his supporting affirmation, he again alleged that the Leave Decision was reached unfairly without an opportunity to clarify his case and situation in his country and that he would like to appeal out of time as he did not have the appropriate means and had not received the Leave Decision on time.

17.  Pursuant to the directions made by the Registrar of Civil Appeals on 12 August 2021, the applicant lodged his written submissions on 25 August 2021.  In those submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, without specifying any intended ground of appeal.  It is also noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

Discussion

18.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

19.  We consider that the applicant’s delay of over one month as substantial and the applicant simply failed to give any good reason or evidence in support of his delay.  According to the Court record, it is noted that the Leave Decision and the sealed Court order had been posted to his last reported address on 25 March 2021 and was not returned undelivered.  Accordingly, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

20.  The general approach in dealing with appeals in non‑refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

21.  At the outset, it is noted that the matters stated in his summons and supporting affirmation are all general, bare and vague allegations unsupported by specific particulars or any evidence.  It is also noted that the Deputy Judge dealt with the applicant’s application for leave to apply for judicial review on paper as he did not request for an oral hearing.  As such, the matters raised by applicant are simply not proper grounds of appeal and the intended appeal must fail on this basis alone.

22.  Further, those arguments raised in his written submissions are also new and not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  The applicant’s contentions are also general and bare assertions without any specific particulars or evidence in support.  They do not constitute proper grounds of appeal and we refuse to entertain those arguments.

23.  Insofar as the Board’s 2^nd Decision is concerned, although the Board had stated that it had considered all the circumstances of the case, as the Deputy Judge rightly point out at [20] of the Leave Decision, the Board did not have the benefit of the decision of Re Khan Kamal Ahmed [2019] HKCA 377 before it, and on the face of the Board’s 2^nd Decision, appeared that it had confined its consideration to the factors under section 37ZT(2)(a) and (b) of the Immigration Ordinance, and made no express mention as to the merits of the applicant’s case.

24.  That said, as noted above, the Board had already found in its 1^st Decision that the applicant failed to substantiate his non-refoulement claim on the applicable grounds with credible evidence.  Given the applicant had not provided further materials to support his BOR2 claim, it is clear that even if the Board were to take into account its merit, it would have similarly rejected the late filing of the BOR2 NOA as it would also find the intended appeal against the Director’s 2^nd Decision to be without any merit.  In the premises, despite the Board’s apparent failure to consider the merit of the applicant’s BOR2 claim, any challenge against the Board’s 2^nd Decision based on that would serve no useful purpose as the Board will reach the same conclusion upon any remittance for reconsideration.  The Deputy Judge was correct to refuse the leave application.

25.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 12 August 2021 is dismissed.