RE RUPINDER SINGH

CAMP 54/2021

[2021] HKCA 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 54 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 822 of 2018)

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JUDGMENT

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Hon Chu JA (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 C P Pang (“the Judge”) dated 7 August 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application, and also lodged a written submission on 8 April 2021.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 24 February 2017 rejecting his non-refoulement claim and the decision of the Torture Claims Appeal Board (“the Board”) dated 7 May 2018 dismissing his appeal against the Director’s decision.

5.  The applicant is a national of India aged 38.  He entered Hong Kong on 24 December 2015 and was given permission to remain as a visitor until 7 January 2016.  He overstayed and surrendered to the Immigration Department on 2 February 2016 and raised a non-refoulement claim. 

6.  The applicant’s claim is based on his fear of being harmed or killed by supporters of the Shiromani Akali Dal (“SAD”) party, which was a powerful ruling party in Punjab, because he, being a Sikh, had reported their people for desecrating the Holy Book of the Sikhs. The details of the applicant’s claim were set out in the decisions of the Director and the Board.  We will not repeat them.     

7.  By his decision dated 24 February 2017, the Director rejected the applicant’s claim on the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] grounds.

8.  The applicant’s appeal to the Board was heard on 3 April 2018.  By its decision dated 7 May 2018, the Board dismissed the appeal.  In gist, the Board had serious concerns about the applicant’s credibility and did not accept that his claim to be truthful.  It did not accept he had witnessed incidents of the Holy Book being desecrated or he had faced risks of being kidnapped or killed as a result of reporting people who desecrated the Holy Book.  It also found that situation in Punjab has changed since the applicant left India in December 2015, and that Holy Book sacrilege incidents are now taken seriously by the authorities.  The Board concluded that the applicant failed to show there is any risk of harm to him if he were refouled and he is not entitled to non-refoulement protection on any of the appliable grounds.

9.  On 11 May 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Other than stating in the affirmation that the decisions of the Director and the Board were not correct and they had failed to consider the real situation in India, he did not put forward any grounds for seeking relief.

10.  By a CALL-1 Form dated 7 August 2020[5], the Judge dismissed the application for leave to apply for judicial review and gave his reasons in [12] to [18] of the Form CALL-1.  The Judge held that the Director’s decision is not amenable to judicial review given that it was superseded by the Board’s decision.  As to the Board’s decision, he considered the applicant had given no details to support his dissatisfaction with it.  He also found no errors of law or procedural irregularities in the Board’s decision.  He therefore concluded that the applicant’s intended judicial review had no reasonable prospect of success.

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 order refusing leave within 14 days after such refusal.  Since the month of August fell within the Court’s summer vacation and is not to be taken into account in reckoning the period for making the appeal (see Order 3 rule 3 of the Rules of the High Court), the 14-days for the applicant to appeal the Judge’s order did not expire until 14 September 2020.

12.  By a summons filed on 30 September 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge CP Pang heard the application on 17 November 2020, and by his decision handed down on 23 December 2020[6] refused the application. 

13.  Under Order 59 rule 14(3) of the Rules of the High Court, the applicant may make a further application to the Court of Appeal within seven days after the order of Deputy High Court Judge CP Pang.  The seven-day period expired on 30 December 2020.  About six weeks later on 11 February 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The applicant stated in the written submission that he did not receive the Court’s decision but provided no elaboration.  We have doubts about this assertion since the court record shows that the Judge’s decision of 23 December 2020 was mailed to the address provided by the applicant and it had not been returned by the Post Office.      

14.  As to the present application to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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 late by one month, which is not insignificant.  He explained at the hearing before the Judge that he did not receive the court’s decision because he had changed his address.  We agree with the Judge that this is not a good reason because it is his duty to inform the Court of any change in his address.  In the circumstances, he has to show that his intended appeal enjoys a real prospect of success.     

16.  In assessing the merit 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].

17.  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.

18.  In the present application, the applicant did not set out any proposed ground of appeal in his summons and his supporting affirmation.

19.  In the written submission, the applicant gave a brief account of his claim, and asserted that the people of SAD wanted to kill him.  He said the appeal was important to him because if he could not appeal, he would be sent back to India and would be killed by his enemy.  He therefore asked that an extension of time be granted to him.  

20.  What was stated by the applicant do not amount to viable grounds of appeal against the Judge’s decision.  Importantly, he has not identified any error in the Judge’s decision or reasons.  Further, the Board had rejected his claim as being not credible and found there is no real risks of harm to him if he were to return to India. Assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker.   The Court will not interfere with its findings, in the absence of legal errors, irrationality or procedural irregularities in the Board’s decision.  We agree with the Judge’s holding that the intended judicial review had no reasonable prospect of success, and his decision to refuse the application for leave to apply for judicial review.

21.  As the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 11 February 2021.