RE GURPREET SINGH

CAMP 100/2021

[2021] HKCA 1262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 100 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 733 of 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 Bruno Chan (“the Judge”)  dated 22 September 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application.  Despite directions given by the Registrar of Civil Appeals, he has not lodged any written submission to support his application.

3.  Under Order 59 rule 2A(5)(a)  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’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dated 19 April 2018 dismissing his appeal against the further decision of the Director of Immigration (“the Director”)  dated 6 April 2017 rejecting his non-refoulement claim under the BOR 2 risk ground.

5.  The applicant is a national of Indian aged 41.  He arrived in Hong Kong on 24 January 2014 and was refused entry by the Director of Immigration.  On the following day, he lodged a torture claim and a CIDTP claim.  Upon the commencement of the Unified Screening Mechanism in March 2014, his claims were processed as a non-refoulement claim. 

6.  The applicant’s claim is based on his fear of being harmed or killed by members of the Shiromani Akali Dal Party (“SAD”)  because he was a supporter of a rivalry political party, Indian National Congress Party (“INC”).  The details of the applicant’s claim were set out in the decisions of the Director and the Board, and summarised by the Judge in the Form CALL-1 dated 22 September 2020[1] at [2] to [5].  We will not repeat them.    

7.  By his decision dated 25 February 2015, the Director rejected the applicant’s claim on the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds.

8.  The applicant appealed the Director’s decision to the Board.  A hearing was held on 9 December 2015, during which the applicant declined to give evidence or answer questions put by the Board.  By its decision dated 7 December 2016, the Board dismissed the appeal.  Primarily, the Board found the information and materials provided by the applicant to the Director to be vague and lacking in details.  Given that the applicant declined to give evidence or answer questions, there was no opportunity to clarify his case.  The Board did not feel able to rely on his case.  The Board was further of the view that internal relocation was reasonably available.

9.  Later on, 10 March 2017, the Director invited the applicant to provide additional facts that may be relevant to his claim including on the BOR 2 risk[5] ground.  After considering the additional information submitted by the applicant, the Director by his further decision dated 6 April 2017 decided against the applicant under the BOR 2 risk ground.    

10.  The applicant appealed the Director’s further decision to the Board.  A hearing was held on 19 January 2018, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 19 April 2018, the Board dismissed the appeal.  The Board found the new fact put forward by the applicant, namely, his father and family now support Aam Aadmi Party, did not advance the applicant’s claim because this party is now the ruling party.  The Board further held that on his own case, there is no evidence to support a BOR 2 risk claim.

11.  On 26 April 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He did not put forward any grounds for seeking relief.  He merely stated in the supporting affirmation that the Board’s decision was unfair and erroneous.

12.  On 22 September 2020, the Judge dismissed the application for leave to apply for judicial review and gave his reasons in [13] to [17] of the Form CALL-1 as follows: 

“13. On 26 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the Board’s decision is unfair and erroneous without providing any particulars or elaboration how it is so or putting forward any other proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicant’s case, even on the facts of his claim, and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, of which the Board was entitled to find, and in my view correctly so. Furthermore, the fact that it has been established by both the Director and the Board in their earlier decisions that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

13.  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. 

14.  By a summons filed on 14 October 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 9 March 2021, and by his decision handed down on 23 March 2021[6] refused the application.  On 31 March 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.    

15.  In considering whether to extend time for appealing against a decision refusing 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. 

16.  The applicant was late by about eight days, which is not significant.  In the affirmation in support of the present application, the applicant explained that he was late due to lack of knowledge and insufficient resources.  He had previously told the Judge that after he received the Judge’s decision, he did not know what to do and it was only later on that he was told by his friend he could appeal.  While the duty is on a litigant to take reasonable steps to ascertain his rights and the relevant procedure, considering that he is unrepresented and has limited resources, we are prepared to accept his explanation.  In any event, what is more important is the merits of his intended appeal. 

17.  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].

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.  In the present application, the applicant has not set out any proposed ground of appeal in his summons and his supporting affirmation.  He has not pointed to any error in the Judge’s decision.    

20.  We have nevertheless considered the Board’s decision on the applicant’s appeal against the Director’s further decision.  We agree with the Judge that it has not been shown there are legal errors, irrationality or procedural irregularities in the Board’s decision, and the intended judicial review application had no prospect of success.  The Judge was right in refusing to give leave to apply for judicial review and dismissing the application.

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  

22.  For the above reasons, we dismiss the applicant’s summons filed on 31 March 2021.