RE JASPREET SINGH

CAMP 88/2021

[2021] HKCA 1245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 88 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2213 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 Bruno Chan (“the Judge”) dated 16 January 2020[1] 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 30 April 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 25 September 2017 rejecting his non-refoulement claim.

5.  The applicant is a national of Indian aged 31.  He arrived in Hong Kong on 22 October 2010 and was refused entry by the Director of Immigration.  He lodged a torture claim, which was rejected by the Director on 23 September 2011.  He did not appeal against the decision. In 2013, he raised a non-refoulement claim. 

6.  The applicant’s claim is based on his fear of being harmed or killed by a man named Kuldip Singh in revenge for his brother who was killed by the applicant’s father in 1981.  The applicant’s father left the village in 2007 after serving his term of imprisonment.  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 16 January 2020 at [2] to [8].  We will not repeat them.     

7.  By his decision dated 25 September 2017, the Director rejected the applicant’s claim on the BOR 3 risk[2], persecution risk[3] and BOR 2 risk^[4] ground grounds.

8.  The applicant appealed the Director’s decision to the Board.  A hearing was held on 12 April 2018, but the applicant failed to attend.  By its decision dated 30 April 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s claim of fear of being harmed by Kuldip to be incredible.  It did not accept that the applicant had been threatened or assaulted by Kuldip in his home country.  The Board was also of the view that, in any event, internal relocation was reasonably available, which would reduce or negate any risk of harm that the applicant may face.  The Board concluded that the claim failed on all of the applicable grounds.

9.  On 11 October 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 he was satisfied with the Board’s decision, without providing any details.  Neither did he request an oral hearing.

10.  By letter dated 31 October 2019, the applicant requested to withdraw his application as he wanted to return to his country as soon as possible.  On 14 November 2019, the Court of First Instance granted the request and treated the applicant’s application as being withdrawn.  The applicant was informed by letter on the same day. Later on 3 December 2019, the applicant wrote to re-open his application, contending that his life was still in danger and he no longer wanted to return to India.  The Judge allowed the request and proceeded to consider the merits of the application for leave to apply for judicial review on the papers.

11.  On 16 January 2020, the Judge dismissed the application for leave to apply for judicial review and gave his reasons in [19] to [22] of the Form CALL-1 as follows: 

“19. Firstly, as already noted above, the Applicant has not put forward any reasonably arguable ground for his intended challenge of the finding or decision of the Board regarding his non-refoulement claim, and as it 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.

20. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.

21. 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.

22. 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.”

12.  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. 

13.  By a summons filed on 11 August 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application on 21 October 2020, and by his decision handed down on 1 December 2020[5] refused the application. On 17 March 2021, the applicant filed the present summons applying to appeal out of time the Judge’s decision of 1 December 2020.  This is not a correct step to take.  The proper procedure is to make a further application to this Court for extension of time to appeal the decision of 16 January 2020.  We will treat the summons as a renewed application to extend the time to appeal against the Judge’s refusal of leave to apply for judicial review.

14.  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. 

15.  When the applicant filed the 11 August 2020 summons, he was late by about three months, taking into account the General Adjourned Period when the Court registry was closed due to the public health situation caused by covid-19.  The delay of three months is serious. In the affirmation in support of the present application, the applicant said that he did not receive the court’s decision, and as he was illiterate and unrepresented, he was not aware of the 14-day time limit.  In the affirmation filed in the Court below, the applicant also said he was detained at the Castle Peak Immigration Centre. 

16.  We agree with the Judge that these are not satisfactory reasons.  Firstly, it is the duty of a litigant to inform the court of any change in his address so that court documents can reach him timely.  Secondly, it is also the duty of a litigant to take reasonable steps to ascertain his rights and the relevant procedure.  In the present case, the applicant has not indicated what steps he had taken to establish the time for appealing the Judge’s refusal of leave to apply for judicial review.    

17.  In the circumstances, the applicant has to show that his intended appeal has a real prospect of success.  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 only stated in the summons that he wanted leave “to advance a new sole ground of appeal”.  He has, however, not elaborated on what the ground was.  His supporting affirmation also did not set out any proposed ground of appeal.  Neither the summons nor his affirmation 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 17 March 2021. 

[1] [2020] HKCFI 179.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] [2021] HKCFI 2897.