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CAMP 199/2023, [2024] HKCA 264
On Appeal From [2023] HKCFI 853
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 199 OF 2023
(ON AN INTENDED APPEAL FROM HCAL NO 776 OF 2019)
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| RE: |
MANDEEP SINGH |
Applicant |
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| Before: |
Hon Au and Chow JJA in Court |
| Date of Judgment: |
20 March 2024 |
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J U D G M E N T
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Hon Au JA (giving the judgment of the court):
1. On 29 May 2023, the applicant took out a summons to apply for leave to appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 22 May 2023 ([2023] HKCFI 1223) (“the EOT Decision”) refusing to grant him an extension of time to appeal against an earlier order of the Judge dated 30 March 2023 ([2023] HKCFI 853) (“the Leave Decision”) refusing leave to apply for judicial review.
2. The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 21 February 2019, dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 3 November 2017 rejecting the applicant’s non-refoulement claim.
3. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).
BACKGROUND
4. The applicant is a national of India. He entered Hong Kong illegally on 9 October 2014 and was arrested by the police for being an illegal immigrant on 20 October 2014. On 22 October 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle due to a land dispute. Details of the applicant’s claim have been summarised by the Judge at [4] ‑ [5] of the Leave Decision.
5. By a Notice of Decision dated 3 November 2017 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim on all applicable grounds: risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].
6. The applicant appealed the Director’s Decision to the Board. On 21 February 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at [9] of the Leave Decision:
“9. Having considered the evidence, the Board found that the applicant’s evidence about the conflict between his uncle and father was extremely general and lacked in details [28]; and that he offered no cogent explanation as to why his uncle would target him instead of his father [29]. The Board further found that the applicant sought to exaggerate his claim and that his claim was implausible [33]. In these premises, the Board rejected the core aspects of the applicant’s claim for lack of credibility [36]. As a result, the Board rejected the applicant’s claim and dismissed his appeal.”
7. On 20 March 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In his supporting affirmation, he only stated that his life would still be in danger if refouled to his home country.
THE JUDGE’S DECISION
8. On 30 March 2023, as the applicant did not request for an oral hearing, the Judge determined his application on paper and refused to grant the applicant leave to apply for judicial review. His reasons were stated at [12] ‑ [17] of the Leave 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, §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 reasons stated in paragraph 11, supra do not assist his application. They are general comments without substance. The Board had assessed his case and did not accept his evidence on the facts of his case. There is no valid reason 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. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”
9. Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14‑day period.
10. On 26 April 2023, the applicant applied by summons for an extension of time to appeal against the Leave Decision. By that time, he was almost two weeks late with his intended appeal.
11. On 22 May 2023, the Judge refused the applicant’s application, holding that the applicant had not been able to raise any valid ground to challenge the Board’s Decision or show any realistic prospect of success in his intended appeal.
THIS APPLICATION
12. By a summons and a supporting affirmation filed on 29 May 2023 in the Court of Appeal, the applicant applied for leave to appeal against the EOT Decision. In his summons and supporting affirmation, the applicant did not provide any reason for his delay and merely alleged that his life would still be in danger upon refoulement.
13. Pursuant to the directions of the Registrar of Civil Appeals dated 29 May 2023, the applicant lodged his written submissions on 12 June 2023. In those submissions, he cited various case authorities and legal propositions on high standard of fairness and Wednesbury unreasonableness, but failed to specify how those legal principles were in any way relevant to his case.
DISCUSSION
14. Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.
15. In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.
16. The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at [19].
17. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14]. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at [14(6)]).
18. Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.
19. The applicant’s delay of almost two weeks is substantial. He did not provide any reason, let alone good reason for his delay.
20. More importantly, his complaints are general allegations without particulars. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. The applicant has failed to identify any error or raise any viable ground of appeal against the Leave Decision.
21. There is no prospect of success in the applicant’s intended appeal. It is thus futile to grant the applicant any extension of time to appeal against the Leave Decision.
DISPOSITION
22. The application for extension of time to appeal is refused, and the applicant’s summons taken out on 29 May 2023 is dismissed.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] 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.
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