RE HARJEET PAL

CAMP 35/2019

[2019] HKCA 858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1123 OF 2017)

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J U D G M E N T

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

Introduction

1.  By a decision dated 12 October 2018 (“the Decision”), Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 28 July 2017 and the decision of the Torture Claims Appeal Board (“the Board”) dated 8 December 2017. 

2.  On 26 February 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 4 March 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 5 March 2019, the applicant filed his written submissions on 18 March 2019.  The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is an Indian national.  He entered Hong Kong illegally on 2 August 2015 and surrendered to the Immigration Department the next day.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 20 October 2015.  On 7 December 2015, the applicant was arrested for taking up employment whilst remaining in Hong Kong without the authority of the Director.  He was convicted on 12 December 2015 and received 15 months’ imprisonment.  His NRF claim form was submitted on 6 July 2017 after his release.  The applicant’s claim was based on his alleged fear that if he were to return to India, he would be harmed or even killed by Mukhtar Singh (“MS”) since he had a land dispute with MS. 

5.  By a Notice of Decision dated 28 July 2017, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk, the BOR 3 risk, the persecution risk, and the torture risk. 

The Judge’s Decision

7.  On 21 December 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decision but he did not put forward any grounds for his intended challenge.  In the applicant’s supporting affirmation, he reiterated his fear of being harmed and killed by his enemy and he requested to stay in Hong Kong.

8.  On 12 October 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge gave the following reasons at [11] to [12] for her refusal to grant leave:

“ Conclusion

11. I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 26 October 2018).  By the summons filed on 27 November 2018, he sought an extension of time for him to appeal against the Decision.  In his supporting affirmation, he explained that upon his release from Castle Peak Bay Immigration Centre in January 2018, he informed the Immigration Department of his new address and presumed that they would forward the change of address to all relevant authorities.  He did not receive the Decision dated 12 October 2018 until 21 November 2018.   He accepted that he made no effort to follow up the progress of his application with the court. 

10.  By the Leave Decision, the Judge refused to grant an extension of time as she found that the applicant’s explanation for the delay was not acceptable.  As the applicant was well aware of his pending application, it was incumbent upon him to progress it properly.  In any event, the Judge found no merit in the applicant’s case which arose out of a private land dispute and resulted in a single assault incident albeit that the applicant claimed to have suffered from leg fracture.  Further, the applicant failed to advance any grounds of review against the Board’s decision nor any grounds of appeal before the Judge for her decisions.  The Judge considered that there was plainly no prospect of success in the applicant’s application, see [6] and [8] of the Leave Decision.

The Renew Application

11.  By the summons dated 4 March 2019, the applicant renewed the matter before us.  The applicant did not advance any grounds of appeal in summons nor in his supporting affirmation except by saying that he was late because he did not know how to apply.   In his written submissions, he complained that the Indian police was corrupt and would rarely bring justice and he reiterated his fear of being harm and killed if refouled.

Legal Principles

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

13.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court should still examine if he has merit in the intended appeal, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

14.  In assessing the merits of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)   The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)   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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

15.  We are of the view that the delay of 1 months in taking out the summons for an extension of time to appeal against the Decision was not insubstantial.  The explanation that he only updated his new address with the Immigration Department in or about January 2018 and presumed that it would inform all relevant authorities including the court of his new address was not a good reason for the delay. Even we are prepared to excuse the delay, the merit of the applicant’s case is the more important consideration.

16.  Given the fact of this case, we agree with the Judge that applicant’s case only arose from a private land dispute and even on the account of applicant’s case that he suffered leg fracture injury as a result of one single assault, it was far less than the minimum degree of severity that would warrant non-refoulement protection claim. Further, as rightly pointed by the Judge, the applicant failed to advance any grounds of review / appeal against the Board’s decision and the Judge’s decisions and the applicant merely request the court to consider his case afresh.   

17.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal. 

Conclusion

18.  The summons dated 4 March 2019 is dismissed accordingly.

19.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.