RE LACHHMAN SINGH

CAMP 405/2022

[2022] HKCA 1910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 405 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 276 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 16 February 2022[1] refusing to extend time for the applicant to apply for leave to apply for judicial review and dismissing the application for such leave.  The intended judicial review is treated as being sought against the decision of the Torture Claims Appeal Board (“Board”) dated 17 September 2012.  In that decision, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“Director”) dated 31 July 2012 rejecting his torture claim.

2.  On 27 September 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is an Indian national, born in 1976.  He entered Hong Kong as a visitor on 12 November 2010, but he did not leave and had overstayed since 27 November 2010.  He was arrested by the police on 3 January 2011 for overstaying.  Upon being referred to the Immigration Department, he lodged a torture claim by written representation on 5 January 2011.  His claim was based on the fear that, if returned to India, he would be harmed by supporters of the Akali Dal Party due to his affiliation with their political opponent, the Indian National Congress Party.

4.  The applicant’s claim was assessed by the Director in 2011-2012 with reference to torture risk only.[3]  By notice of decision dated 31 July 2012, the Director rejected the applicant’s claim.

5.  The applicant petitioned to the Board against the decision of the Director.  The Board, considering the petition on paper, appears to have accepted the primary facts alleged by the applicant, but nevertheless concluded that the applicant’s claim for protection was not real and genuine, because there was only one incident of conflict in February 2007 in which the applicant has suffered minor injury and that was not shown to have been inflicted for any of the purposes stated in Article 1 of the Convention Against Torture.  The Board also found that the applicant would be protected by the laws and authorities in India, and that the applicant could safely relocate within India and avoid his enemies upon his return. Accordingly, the petition was dismissed in the Board’s decision on 17 September 2012.

The Judge’s decisions in the court below

6.  There was no record of the applicant ever having claimed non-refoulement protection in Hong Kong based on any of the other potential risks, namely, BOR 3 risk,[4] persecution risk,[5] and BOR 2 risk.[6] 

7.  On 29 January 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Director’s decision dated 10 June 2012 (which was in fact dated 31 July 2012), though his affirmation in support stated that he wanted to seek judicial review of the Board’s decision. The application was made many years after the expiry of the 3-month period prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) for judicial review.  The applicant did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

8.  Based on consideration of the documents alone, on 16 February 2022 the Judge issued his decision, treating the application as directed against the Board’s decision, and refusing to grant an extension of time or to grant leave to apply for judicial review.  The reasons were set out at [10] – [14] of the Form CALL-1 as follows:

“ 10. As the last day of the 3-month period for him to file his Form 86 fell on 17 December 2012, the Applicant was therefore more than 6 years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

11. In the Applicant’s case, a delay of more than 6 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on 17 September 2012 to the Applicant’s last reported address without being returned through undelivered post, I am unable to see any good reason for his such serious delay.

12. As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

13. 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.

14. 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 torture claim.”

9.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but only took out a summons on 22 April 2022 to seek an extension of time to appeal against the decision of the Judge.  In his supporting affirmation, the applicant stated that the Judge’s decision had been reached unfairly without allowing him an opportunity to clarify his case and the situation in his country.  He said that his appeal was out of time because he did not receive any correspondence from the court and only learnt about the Judge’s decision when he reported to the Immigration Department.

10.  The Judge held an oral hearing of the summons on 14 September 2022 but the applicant failed to appear.  In his written decision dated 27 September 2022, the Judge dismissed the application as he considered that the applicant had not provided any valid reason for the serious delay or shown any prospect of success in his intended appeal.

The renewed application before this Court

11.  By summons filed on 3 October 2022, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to extend time for judicial review or to grant leave for judicial review.  In the accompanying affirmation, the applicant repeated that he did not receive any correspondence from the court.  He stated that he was currently not able to return to his country as his problems were not yet solved and he wanted to continue with his appeal.

12.  Despite the directions given by the Registrar of Civil Appeals on 3 October 2022 for written submissions to be lodged, the applicant had not sent in any written submissions.

13.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  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 intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.  As the Judge recorded in his decision dated 27 September 2022, the decision dated 16 February 2022 had been sent on that day to the applicant’s last reported address which was the same as that stated in his subsequent application to the court for extension of time.  Like the Judge, we do not consider that the applicant had provided any satisfactory and valid explanation for his delay. 

16.  In any event, we are satisfied that extension of time should be refused because of lack of merits in the intended appeal.  In the present case, the Board found that even on the basis of the applicant’s evidence, there was no sufficient basis for his torture claim.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its decision.  Judicial review is not a further avenue of appeal.  The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, and irrationality in the ultimate decision.  The applicant has wholly failed to advance any such public law grounds; nor can we see any from the materials before us.

17.  The applicant has also failed to show how the Judge has erred in refusing to extend time and to grant leave for judicial review.  In his summons in the court below for extension of time to appeal, the applicant complained of not being given an opportunity to clarify his case, but he failed to attend the hearing held by the Judge for that summons on 14 September 2022. 

18.  Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review. 

19.  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 applicant’s summons is accordingly dismissed.