RE GURVINDER SINGH

CAMP 125/2023, [2024] HKCA 958

On appeal from [2023] HKCFI 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 125 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 542/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”)  dated 16 January 2023 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 29 January 2019 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 25 May 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of India. He arrived in Hong Kong initially as a visitor on 27 October 2012, but was refused permission to land.  Later on the same day, prior to his removal, he lodged a torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”), which was rejected by the Director on 23 April 2013.  He did not appeal against the rejection of the CAT Claim.

3.  The applicant subsequently lodged a non-refoulement claim on grounds other than torture by way of a written representation dated 24 April 2013.

4.  The applicant’s claim was based on a fear of being harmed or killed by a member of the Indian National Congress named Paramjit Singh (“PS”).  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of his decision (“the CALL-1 Form”)[1].

5.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4].  

6.  The applicant appealed to the Board.  After a hearing on 22 November 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found on the evidence that there was no real risk of harm posed to the applicant by PS should he be refouled.  In any event, there were suitable options of internal relocation available to the applicant. 

The Judge’s decision

7.  The applicant filed a Form 86 on 25 February 2019 seeking to judicially review the Board’s Decision.In his supporting affirmation, the applicant merely stated that the Board’s Decision was “unfair and unreasonable”.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [19] of the CALL-1 Form:

“13.  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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.’

16.  The Board had assessed his case and did not accept his evidence on the facts of his case. The ground in paragraph 12 is only his opinion without any evidence in support.

17.  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.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

9.  The applicant’s last known address at the time of the Judge’s decision was at Ka Ho Building, Yuen Long (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the Address on 16 January 2023, which was not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 16 January 2023.

11.  The applicant thereafter took out a summons in the Court of First Instance on 22 February 2023 seeking extension of time to appeal, in which his address was stated to be at On Ning Road, Yuen Long (“the On Ning Road Address”).  In the summons and his supporting affirmation filed on the same date, he claimed that he did not receive the “High Court decision” and that he disagreed with it.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 16 March 2023[5].

13.  By a summons filed on 27 March 2023, the applicant renewed his application for extension of time to appeal before this court. In the summons and his supporting affirmation, the applicant again claimed that he did not receive the “High Court decision” and that he disagreed with it.

14.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge any written submissions with the court. He is thus deemed to have abandoned his right to rely on the same.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  As noted above, the Judge’s decision was sent to the last known address of the applicant, i.e. at the Address, but was not returned undelivered.  The inference to be drawn is that the applicant has had notice of the Judge’s decision within the period which he was permitted to lodge an appeal.

17.  In any event, the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained how or when he had come to learn of the Judge’s decision.  He has also failed to inform the court of his change of address from the Address to the On Ning Road Address, and the consequences of such failure must lie with him.

18.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

19.  We have nonetheless proceeded to consider the merits of the intended appeal.

20.  In any event, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

23.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 27 March 2023 is accordingly dismissed.