RE SAFRI SURJIT SINGH

CAMP 280/2022, [2023] HKCA 1051

On Appeal From [2022] HKCFI 896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF4 APPEAL

MISCELLANEOUS PROCEEDINGS NO 280 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 207 OF 2019)

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J U D G M E N T

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

1.  On 4 April 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 17 May 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 15 June 2022.

3.  On 29 July 2022, the applicant filed his summons in CAMP 280/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 29 July 2022, the applicant lodged his written submissions on 10 August 2022.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of India.  He was refused permission to enter Hong Kong on 25 November 2010 and on the same date, lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, alleging that if refouled, he would be harmed or even killed by his girlfriend Ravinder’s elder brother Sabi (who was associated with the Akali Dai political group), because Ravinder’s family disapproved of their relationship due to religious differences.  The torture claim was rejected by the Director on 9 December 2011.  In the meantime, since September 2011, the applicant disappeared until he was arrested by police on 26 September 2013.  On 11 April 2014, he lodged a non-refoulement claim on the same basis.  The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2022] HKCFI 896).

7.  By a Notice of Decision dated 25 April 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], and the persecution risk[3].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 19 September 2018.  By its decision dated 31 December 2018, the Board dismissed the appeal.  For the reasons set out at [44] to [67], the Board was not convinced that even on the applicant’s evidence, he would face any genuine and real risk of harm upon his return to his home country.  According to the applicant, he and Ravinder only had a relationship for 6 months.  After Ravinder’s brother Sabi intervened, the applicant fled to Hong Kong.  He had separated from Ravinder for 8 years (at the time of the Board’s hearing) and even on his own account, she had probably married and had children by then as she had reached 30.  The Board found that the applicant had over-exaggerated the threats posed by Sabi who was just a local hooligan.  After considering all the circumstances of the case, there is no evidence to suggest that Sabi would still pose a threat to the applicant upon his return to India.  For the aforesaid reasons, the applicant had failed to substantiate that he is qualified for non-refoulement protection on all applicable grounds.

Application for leave to start judicial review

9.  On 22 January 2019, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and the Board’s decision.  He did not advance any ground for seeking relief in his Form or in his supporting affirmation and he only attached the Board’s decision.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of his application on paper.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [12] - [17] of the JR Decision:

“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 applicant has not raised any valid ground 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. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 17 May 2022 for an extension of time to appeal.  That was dismissed by the Judge on 15 June 2022.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

13.  As for (1), the applicant was late by almost 1 month between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

14.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he did not receive the JR Decision.  This was a bare assertion without any corroborating evidence.  The court file showed that the JR Decision was sent to his last known address on the same day it was handed down and it was not returned as undeliverable mail.  He has not shown a good reason for the delay.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any valid grounds of appeal to challenge the Board’s decision nor did he pinpoint any error in JR Decision.  He lodged written submissions which were rambling and which contained some contents which were not applicable at all to his case.  He quoted cases establishing general principles on the high standards of fairness required in the determination of a non-refoulement claim, without stating specifically how they were breached in his case.  

16.  The role of the Court in a judicial review is not to provide a further avenue of appeal of the Board’s decision.  The Court should not examine the decision of the Board afresh as if it were a fresh application for judicial review and will not intervene unless there are valid public law grounds in the decision of the Board, see in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  It is clear from the Board’s decision that the applicant had failed to establish his case on the facts, and he had failed to convince the Board that he would face any real risk of harm if refouled.  On the applicant’s own account, he had ended his relationship with Ravinder once Sabi intervened and he fled to Hong Kong.  It was found that there is no evidence to suggest the Sabi would still pose a threat to him after a long lapse of time.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  We see none in this case. 

18.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

19.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 29 July 2022.