RE MR. NAHAR SINGH

CAMP 30/2019

[2019] HKCA 856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 30 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 601 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a decision dated 21 June 2018 (“the Decision”), Anthony Chan J (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 10 September 2015. 

2.  On 1 February 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 18 February 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 21 February 2019 and 13 March 2019, the applicant was ordered to file his written submissions on or before 1 April 2019 or he shall be debarred from lodging any written submissions, and his application shall be determined on the basis of the summons and the affirmation filed in support.   The applicant had failed to file his written submissions as directed.  The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is a Indian national.  He came to Hong Kong as a visitor and was permitted to stay until 9 September 2013.  He did not depart and overstayed since 10 September 2013.  He surrendered to the Immigration Department on 25 March 2014 and raised his non-refoulement protection claim on the same day.  The applicant’s claim was based on his alleged fear that if he were to return to India, he would be framed up with a false case or even killed by Motha Singh (“MS”) as they had a dispute over unpaid repair fees for repair work done by the applicant for MS.

5.  By a Notice of Decision dated 10 September 2015, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 9 June 2017, the Director rejected the applicant’s claim on the BOR 2 risk.

The Judge’s Decision

7.  On 7 September 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decision made on 10 September 2015.  The applicant did not provide any grounds of his intended challenge in the summons or his supporting affirmation.

8.  On 21 June 2018, the Judge gave his decision refusing to grant leave to the applicant with the following reasons:

“I am unable to see any merit in this application. Although there is no challenge against the decision of Appeal Board in the Form 86, that decision has also been considered. The Applicant’s case was carefully scrutinized by the Board. He was found to be an unreliable witness, and none of the grounds for non-refoulement was substantiated.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 5 July 2018).  By the summons filed on 21 December 2018, he sought an extension of time to appeal against the Decision.  He mentioned in his summons that he did not receive a copy of the Decision and he was only informed of the dismissal of his application for leave to apply for judicial review when reporting recognizance. In his supporting affirmation, he further complained that the Judge reviewed his case in an unfair manner and deprived him of his opportunity to clarify his situation in his country.

10.  By the Leave Decision, the Judge refused to grant an extension of time.  Given the importance of the applicant’s claim, his explanation of slip of mind in informing the court of his new address was unconvincing.  Further, the applicant’s case was rejected by the Board on issue of credibility and none of the grounds of non-refoulement was substantiated, the Judge agreed with the Board’s findings and found no merit in his case, see [7] and [9] of the Leave Decision.

The Renew Application

11.  By the summons dated 18 February 2019, the applicant renewed the matter before us.  In the summons and his supporting affirmation, he reiterated his explanation as put before the Judge and further complained of lack of legal representation. 

Legal Principles

12.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

13.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court should still examine if he has merit in the intended appeal, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

14.  In assessing the merits of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)   The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)   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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

15.  We are of the view that the delay of more than five months in taking out the summons for an extension of time to appeal against the Decision was substantial.  We also agree with the Judge that the applicant had failed to provide any good reason to explain for the delay.  

16.  Therefore, the applicant must satisfy us that the intended appeal has a real prospect of success before extension of time will be granted: see Re Ansar Muhammad [2018] HKCA 227.

17.  Far from an appeal with real prospect of success, we are of the view that the intended appeal of the applicant has no prospect of success.  We have reviewed the Board’s decision and noted that the applicant’s case was rejected as his evidence was inconsistent and implausible.  It was open for the Board to come to its findings and conclusion and we find no errors of law or procedural unfairness or irrationality in the decision of the Board.  The applicant’s complaint of lack of legal representation is a new argument that we are not prepared to entertain.  The applicant had also failed to advance any or any viable grounds of appeal in the summons and in his supporting affirmation to challenge the Judge’s decisions for the present application. 

18.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 18 February 2019 is dismissed accordingly.

19.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.