RE PANNU GURPREET SINGH

CAMP 341/2021

[2022] HKCA 288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 341 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1328/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 Bruno Chan (“the Judge”)  dated 20 January 2020, in which the Judge refused leave for the applicant to apply for judicial review out of time against the decisions of the Director of Immigration (“Director”)  dated 7 August 2017 and the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 24 November 2017 by which the applicant’s non-refoulement claim and appeal were both refused.

Background

2.  The applicant is an Indian national born and raised in the Lauka District, Tarn Taran, Punjab, India.  He illegally entered Hong Kong on 2 April 2015 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim.

3.  In gist, the applicant’s claim was based on a fear of death or serious harm by KS, the head of his home village or KS’ sons who had disputes with the applicant and his brother over the use of irrigation water on the farmland and wounded the applicant one night in 2014. The applicant later heard that one of his brothers was found dead on the road to the village with a head wound for which he suspected the sons of KS were responsible. 

4.  By a Notice of Decision dated 7 August 2017, the Director decided against the applicant’s claim.  This decision covered the torture risk[1], the persecution risk[2], the “BOR 2” risk[3] and the “BOR 3” risk[4].

5.  The applicant appealed to the Board.  After an oral hearing at which the applicant gave evidence and answered questions put to him by the Board, the Board dismissed the appeal on 24 November 2017.  The Board’s decision covered all four grounds for non-refoulement protection.  The Board rejected the applicant’s case, which it did not find to be credible or established on the evidence before it.  

The Judge’s decision on leave to apply for judicial review

6.  The applicant filed a Form 86 on 9 July 2018 for leave to apply for judicial review of both the decisions of the Director and the Board with a supporting affirmation, in which he set out a variety of grounds for his intended judicial review, including that the decisions of the Director or the Board were unreasonable, that they failed to appreciate state acquiescence in his claim, that they failed to take into account relevant COI including corruption and incompetence of the government in India or being selective or improperly relied on irrelevant COI, that they failed to make sufficient enquiry of his claim or to apply high standards of fairness in assessing his claim, or to give him sufficient chance to arrange relevant evidence in support of his claim or his appeal. By then it was already more than four months past the deadline for filing the Form 86 (which fell on 24 February 2018).

7.  The Judge gave the following reasons in his decision dated 20 January 2020 refusing the application for leave to apply for judicial review (as well as extension of time to make the leave application)  (at [10] to [19] of the CALL-1 Form[5]):

“10. On 9 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim as they were not reasonable or fair as required by the Wednesbury test;

(2)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim;

(3)  that the Director failed to take into account the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies before reaching his decision;

(4)  that the Director failed to take into account that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection to its citizens under the duty of due diligence;

(5)  that the Director failed to consider or give sufficient weight to the COI evidence that support the Applicant’s aversions that the police in India would not be able to protect and instead ruled otherwise;

(6)  that the Director relied on only those COI which suited his pre-conceived conclusion which shows a clear case of unfair attitude and renders his decision void;

(7)  that the Director failed to consider the fact that corruptions and incompetency of the administration in India is still a very serious problem as shown by the various human rights organization reports which supported the Applicant’s case;

(8)  that the Director failed to attain high standards of fairness required by the Wednesbury test in his decision;

(9)  that the adjudicator failed to make sufficient enquiry before finalizing his determination; and

(10)  that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his claim as well as his appeal.

11. The Applicant was however by then way out of time with his Form 86, as Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

12. As the last day of the three-months period for the Applicant to file his Form 86 fell on 24 February 2018, he was therefore some 4 ½ months 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 merit of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay or 4 ½ months must be regarded as substantial or excessive, for which he did not provide any explanation in his Form or his supporting affirmation, and as he failed to attend the hearing of his application without any explanation, I do not find any reason for his serious delay.

14. As for the merit of his intended application, those proposed grounds as stated above are merely just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or why state acquiescence would be relevant to his claim, or in what way did they fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what human rights situation in India has to do with his case when it was clearly some private personal disputes with his neighbours in his home village, or how did they fail to make sufficient enquiry of his claim or to apply high standards of fairness in assessing his claim,or how they failed to give him sufficient chance to arrange relevant evidence in support of his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable.

15. As has been repeatedly emphasized by the Court of Appeal, 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.

16. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 20 – 59 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and while the adjudicator may at times appear to be unduly critical of his inability to provide the full address of his home village or the names of KS’s sons with whom he claimed to have disputes, she was nevertheless in my judgment entitled to find, on the basis of the nature of the alleged conflicts and for the cumulative reasons given, that the Applicant failed to establish that his fear is well-founded to be afforded non-refoulement protection. As such, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

17. Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18. 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.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his application.”

8.  According to the court’s record, a copy of the CALL-1 form and a sealed copy of the Judge’s order were sent by post to the applicant at his last known address on 20 January 2020.

The application for extension of time to appeal before the Judge

9.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal. 

10.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 20 January 2020.  He took out a summons for leave to appeal against the Judge’s decision dated 20 January 2020 in the Court of First Instance on 10 March 2020 together with a supporting affirmation, approximately 5 weeks out of time. On 20 August 2020, the Judge extended the time for the applicant to file his notice of appeal within 14 days (i.e. by 3 September 2020)  as the applicant was detained at the Castle Peak Bay Immigration Centre (“CIC”)  and the deadline for him to file the notice of appeal fell during the General Adjournment Period announced by the Judiciary.  

11.  However, the applicant did not do so and instead issued another summons seeking further time to file his notice of appeal on 28 May 2021.  At the oral hearing of the summons on 6 July 2021, the applicant stated that he was sentenced to prison for 8 months in June 2020 and upon discharge in early 2021, he was transferred to CIC and had been detained there since.  He said he never received the Judge’s order extending time to 3 September 2020 and only became aware of it when he was informed of it by his immigration officer, but by the time he was able to obtain legal assistance, he was already seriously out of time.  The applicant did not produce any documentary evidence of the alleged conviction and imprisonment.

12.  The Judge dismissed his application for extension of time on 15 July 2021 and gave the following reasons at [4] to [6] of his decision:

“4.   In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the prospect of the intended appeal; and (iv)  the prejudice to the respondent if an extension of time were granted: 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.

5.   In the applicant’s case, a further delay of more than 8 months must be considered as very substantial, as the court record shows that the order granting him further 14 days to file his notice of appeal was sent on the same day of 20 August 2020 to his last reported address in Sham Shui Po as provided by the Immigration Department without being returned through undelivered post, and that even if what he has alleged is true that he was then in prison and did not know of the order until his discharge and transfer to CIC in early 2021, and as noted that there is no documentary evidence to corroborate his bare assertions, I fail to see why it had taken him until end of May 2021 to make his present application, a delay which must be regarded as substantial even in the circumstances as alleged by him given the fact that he was still able to issue his summons and supporting affirmation while being detained at CIC. In the circumstances I am not satisfied that the applicant has provided a good reason for his substantial delay.

6.   More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation or at the hearing of his summons. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.

7.   In the premises, it would be futile to extend further time to the applicant for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.”

The present application for leave to appeal against the Judge’ decision refusing to grant extension of time to appeal

13.  By a summons filed on 16 August 2021, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he would like to seek leave to appeal out of time against the Judge’s decision dated 15 July 2021 “refusing the [applicant] leave to apply for judicial review”, and that he would like to apply for leave to advance a new sole ground of appeal.  Although the application purported to seek leave to appeal against the decision dated 15 July 2021, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of 20 January 2020, by which leave for judicial review was refused.    

14.  In his supporting affirmation filed on the same date, the applicant states that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his country, and that he would like to appeal out of time as he did not have the appropriate means and he did not receive the decision on time.

15.  In breach of the directions of the Registrar of Civil Appeals dated 16 August 2021 directing the applicant to file written submissions by 30 August 2021, the applicant filed his written submissions late, on 8 September 2021.  In light of the short delay (of 9 days), this court has proceeded to consider the applicant’s submissions, which merely referred to Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 and Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 K.B. 223 for the trite propositions (1)  that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2)  that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3)  that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim; and (4)  the decision of an administrative body may be set aside for Wednesbury unreasonableness.

Discussion

16.  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.    

17.  In our view, the proposed appeal has no prospect of success.

18.  As correctly held by the Judge at [15] of his decision dated 20 January 2020, the evaluation of the risk of harm is primarily a matter for the Director and the Board based on the evidence available to them, and 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.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable.

19.  Further, as this court has often pointed out, in an appeal to the Court of Appeal, it is necessary for grounds of appeal to be advanced that identify some error on the Judge’s part.  This has simply not been done here. 

20.  The proposed appeal is therefore entirely without merit.  This court will not grant leave for a hopeless appeal, and this application is therefore dismissed.