RE MANJIT SINGH

CAMP 34/2023, [2025] HKCA 115

On Appeal From [2022] HKCFI 1229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 34 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1198 OF 2021)

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J U D G M E N T

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

1.  By a summons filed on 30 January 2023, the applicant reapplied to this court for extension of time to appeal against the order made by Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 29 April 2022 refusing to grant extension of time and dismissing his application for leave to apply for judicial review ([2022] HKCFI 1229)  (“the Leave Decision”). Later, by a decision dated 9 November 2022 2022, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 3367)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 11 March 2021 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 23 January 2018 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of India.  He entered Hong Kong illegally on 6 September 2015 and was arrested by the police on the same day.  On 10 September 2015, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his cousins, Narinder and Gurpreet, due to a land dispute where they refused to transfer a piece of farmland in their home village to the applicant’s family.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [6] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant then appealed against the Director’s Decision to the Board, but failed to attend the scheduled hearing before the Board without any explanation.  On 11 March 2021, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons for its decision were summarised by the Deputy Judge at [10] of the Leave Decision.  In essence, the Board found that various parts of the applicant’s claim were lacking in details, inconsistent with other parts of his claim and / or illogical[5].  The Board therefore considered that the applicant’s account of events in relation to the alleged land dispute and the assaults or threats from his cousins were not plausible.  In the premises, the Board found that the applicant would not face any real or substantial risk of being harmed or killed upon refoulement[6].  In any event, the Board held that state protection and internal relocation would both be available to the applicant[7]. Accordingly, the Board considered that the applicant’s claim failed substantiate his claim on all applicable grounds, and dismissed his appeal.

The Leave Decision

7.  On 26 August 2021, the applicant filed a Form 86 together with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  By then, he was over two months late in taking out his application.  No ground of review was provided in his Form 86.  In his supporting affirmation, he merely stated that he did not agree with the Board’s Decision, and that his could not go back to India because his life would be in danger there.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge refused to extend time for the applicant to apply for leave to apply for judicial review and also refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [14] - [19] of the Leave Decision:

“14. In the Applicant’s case, a delay of more than 2 months must be considered as substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

15. 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 his 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.

16. 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.

17. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, 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 leave application.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 21 June 2022, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over five weeks late with his intended appeal.  In his supporting affirmation, the applicant contended that he did not receive the Leave Decision timely.

11.  By the EOT Decision, the Deputy Judge did not accept that the applicant had any good or valid reason for his serious delay.  As the applicant had no arguable grounds of appeal and his intended appeal had no prospect of success, the Deputy Judge refused his application for extension of time to appeal.

The present application

12.  By a summons and a supporting affirmation both filed on 30 January 2023, the applicant reapplied to this court for extension of time to appeal against the Leave Decision.  In his summons, the applicant claimed that he did not receive the letter from the High Court.  In his supporting affirmation, the applicant merely stated that he disagreed with the court’s decision.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 January 2023, the applicant lodged his written submissions on 13 February 2023.  In those submissions, the applicant claimed that his life would not be safe in his home country as his enemy was powerful and influential.  He also complained that the court did not give him a chance to appeal.

Discussion

14.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

15.  We consider that the applicant’s delay of over five weeks was substantial and the applicant simply failed to give any good reason for his delay.  We note from the court record that the Leave Decision was sent on 29 April 2022 to the applicant’s reported address at the time as confirmed by the Director by way of letter dated 26 April 2022 without being returned.  In the premises, the applicant’s allegation that he received the Leave Decision late is nothing but a mere assertion not supported by any evidence.

16.  As such, this court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  In our view, the applicant’s intended appeal is clearly devoid of merit.  Nowhere in his summons, supporting affirmation or written submissions did he identify any error in the Leave Decision with specific particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. Accordingly, his assertions are not viable grounds of appeal and his intended appeal must fail on this basis alone.

19.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 30 January 2023 is dismissed.