RE SATNAM SINGH

CAMP 263/2022, [2023] HKCA 589

On Appeal From [2022] HKCFI 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 263 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2083 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Lung (“the Judge”)  dated 15 February 2022[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission to support the application.  

3.  Under Order 59 rule 2A(5)(a)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of India aged 31.  He arrived in Hong Kong on 22 May 2013 and was refused entry by the Director of Immigration (“Director”).  He lodged a torture claim[2] on the same day, which was rejected by the Director on 22 July 2013.  After the commencement of the Unified Screening Mechanism on 3 March 2014, and upon his request, his claim was endorsed for non-refoulement protection assessment. 

5.  The applicant’s claim is based on fear of being harmed or killed by a person named Vicky, whose father belonged to the Congress Party and was a former member of the local legislative assembly, and his people because he refused to work for him in selling drugs.  The details of the applicant’s claim were set out in the decision of the Director at [10].  We will not repeat them.     

6.  By a notice of decision dated 10 January 2018, the Director of rejected the applicant’s claim having regard to the BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.  There was no assessment under the torture risk ground in light of the previous rejection of his torture claim,

7.  The applicant appealed the Director’s rejection of his claim to the Torture Claims Appeal Board (“the Board”).  The Board heard the appeal at a hearing on 4 July 2018, during which the applicant declined to answer questions from the Board, despite being informed that the Board would be unable to assess the credibility of his claim and it was most likely that the Board’s decision would be unfavourable.  By its decision dated 26 September 2018, the Board dismissed the appeal.  In summary, the Board pointed out that because of the applicant’s refusal to answer questions, it was unable to resolve the apparent inconsistencies, or obtain clarification of the matters which on their face appear implausible or test the claim so as to be satisfied as to its veracity, or be satisfied that the applicant would remain at real and substantial risk of harm given the lapse of time.  The Board concluded that he failed to establish entitlement to non-refoulement protection under any of the applicable grounds.

8.  On 2 October 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to apply for judicial review.  Other than stating in the affirmation that the Board disregarded the danger and threats he would face in his country; the applicant did not provide any ground in support of the application.   

9.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 15 February 2022, the Judge dismissed the application.  His reasons are encapsulated in [14] to [20] as follows:

“14. 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 applicants’ 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

16. 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.”

17. The applicant had been duly advised to answer the Board’s questions. Yet the applicant elected not to give evidence. The Board is entitled to assess his evidence on that basis and make findings against him. Li Defan & Another v HKSAR (2002)  5 HKCFAR 320 at §27[1].

18. The applicant does not have any valid ground to challenge the Board’s Decision.

19. 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.

20. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

10.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The time for the applicant to appeal the Judge’s decision expired on 1 March 2022.

11.  By a summons filed on 3 March 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 20 April 2022[6] the Judge refused to extend the time for appeal. 

12.  Under Order 59 rule 2B(3)  of the Rules of the High Court, the applicant may make a further application for leave to appeal to the Court of Appeal within 14 days from the date of the Judge’s refusal. The 14-day period expired on 4 May 2022.

13.  On 20 July 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.  The applicant did not offer any explanation for his delay in making the present application.  

14.  As to his renewed application for extension of time to appeal, we will take into account: (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. 

15.  The applicant was two days late when he filed the summons on 3 March 2022.  He stated in the summons that he “did not get the decision” without any elaboration.  In view of the short delay, we would focus on the merits of the application.   

16.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. Among them, the following are of particular relevance to the present application:

(1)  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.  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.

(2)  Assessment of credibility and evaluation of risks of harm are matters for the Director and the Board, who are the primary decision makers.  The Court in judicial review proceedings exercises a supervisory role, and will only intervene with a primary decision maker’s decision if there is error of law, irrationality or procedural irregularity or unfairness.

17.  In the summons and the written submission, the applicant merely stated that he was not satisfied with the court’s decisions, but did not provide any ground in support of his appeal. 

18.  In his written submission, the applicant stated that while he loves his country, it is not possible for him to return because of the problems he has in his country.  He complained that nobody believed him, and there were many errors but the Judge failed to find them.

19.  For the reasons set out below, we are of the view that the matters put forward in the written submissions do not constitute viable grounds of appeal:

(1)  The applicant does not provide any particular to his complaint that the court had committed many errors.  

(2)  The applicant has not pointed to any error in the Board’s decision and reasons.

(3)  In light of the Board’s rejection of the factual basis of the applicant’s claim, his assertion that he would face danger and threats if refouled to India cannot stand.    

20.  We have separately considered the Board’s decision.  We also do not discern any viable ground to disturb the Board’s decision.  We agree that the intended judicial review has no prospect of success and the Judge was correct in refusing to give leave to apply for judicial review.  

21.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 20 July 2022.