RE NIRMAL SINGH

CAMP 57/2021

[2021] HKCA 887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 57 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2895 of 2018)

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JUDGMENT

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Hon Chu JA (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 Judge Lung (“the Judge”) dated 7 August 2020 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation in support of his application, and also lodged a written submission on 8 April 2021.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time 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’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 6 December 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 6 March 2018 rejecting his non-refoulement claim.

5.  The applicant is a national of India aged 50.  He first entered Hong Kong in September 2006 and was given permission to remain as a visitor until 22 September 2006.  He overstayed and was arrested by the police in October 2007.  He raised a torture claim, which he later withdrew, and he was sent back to India in November 2011.  In 2014, he entered Hong Kong illegally and was arrested by the police on 28 April 2014.  He raised a non-refoulement claim on 30 April 2014. 

6.  The applicant’s claim is based on his fear of being harmed or killed by two members of the India National Congress (“INC”) party because he was a supporter of the rival Shiromani Akali Dal (“SAD”) party and he had refused to switch allegiance.  The details of the applicant’s claim were set out in the decisions of the Director and the Board. We will not repeat them.     

7.  By his decision dated 6 March 2018, the Director rejected the applicant’s claim on the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] grounds.

8.  The applicant’s appeal to the Board was heard on 18 October 2018.  By its decision dated 6 December 2018, the Board dismissed the appeal.  The Board accepted that the applicant was a supporter of SAD and had disagreement with the two INC members because he refused to become an INC supporter.  It, however, found the incidents recounted by him did not show he has suffered harm amounting to torture or persecution or that his life was put at risk at all.  The Board also found there was no credible evidence to suggest the two INC members still retain any interest in him.  It further found internal relocation options and state protection are reasonably available, which would reduce or negate any risks of harm he may suffer.  The Board concluded that the applicant failed to show he was entitled to non-refoulement protection on any of the appliable grounds.

9.  On 17 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Other than stating in the affirmation that he was not satisfied with the Board’s decision, he did not put forward any grounds for seeking relief.

10.  By a CALL-1 Form dated 7 August 2020[5], the Judge dismissed the application for leave to apply for judicial review and gave his reasons in [12] to [18] of the Form CALL-1.  The Judge considered that the applicant had given no details to support his dissatisfaction with the Board’s decision.  He also did not find any errors of law or procedural irregularities in the Board’s decision.  He therefore concluded that the applicant’s intended judicial review had no reasonable prospect of success.   

11.  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 order refusing leave within 14 days after such refusal.  Since the month of August fell within the Court’s summer vacation and is not to be taken into account in reckoning the period for making the appeal (see Order 3 rule 3 of the Rules of the High Court), the 14-days for the applicant to appeal the Judge’s order did not expire until 14 September 2020.

12.  By a summons filed on 17 September 2020, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge CP Pang heard the application on 17 November 2020, and by his decision handed down on 23 December 2020[6] refused the application. 

13.  Under Order 59 rule 14(3) of the Rules of the High Court, the applicant may make a further application to the Court of Appeal within seven days after the order of Deputy High Court Judge CP Pang.  The seven-day period expired on 30 December 2020. Almost seven weeks later on 17 February 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The applicant stated in the written submission that he did not receive the Court’s decision and was only told about it by the Immigration Officer.  We have doubts about this assertion since the court record shows that the Decision was mailed to the address provided by the applicant and it had not been returned by the Post Office.      

14.  As to the present application to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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 late by three days[7], which is not substantial.  He explained at the hearing before Deputy High Court Judge Pang that he did not receive the court’s decision in time because someone damaged the letter box.  We are prepared to accept his explanation.    

16.  In assessing the merit of the intended appeal, the court 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].

17.  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.

18.  In the present application, the applicant did not set out any proposed ground of appeal in his summons and his supporting affirmation.

19.  In the written submission, the applicant gave a brief account of his claim, and asserted that his enemy wanted to kill him and that Indian politics is notoriously bad.  He said the appeal was important to him because if he could not appeal he would be sent back to India and would be killed by his enemy.  He therefore asked that an extension of time be granted to him.  

20.  What was stated by the applicant do not amount to viable grounds of appeal against the Judge’s decision.  Importantly, he has not identified any error in the Judge’s decision or reasons.  The Board had found that, on the applicant’s evidence, none of the grounds for non-refoulement protection had been made out.  As it has not been shown there are legal errors, irrationality or procedural irregularities in the Board’s decision, the intended judicial review had no reasonable prospect of success, and the Judge was correct in refusing the application to give leave to apply for judicial review.

21.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 17 February 2021.