AMANDEEP SINGH v. DIRECTOR OF IMMIGRATION

CAMP 5/2025, [2025] HKCA 628

On An Intended Appeal From [2024] HKCFI 2591 &

[2024] HKCFI 3686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 5 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1073 OF 2021)

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JUDGMENT

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

1.  On 6 January 2025, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge To (“the Judge”) dated 23 December 2024 refusing to grant an extension of time to appeal against the Judge’s earlier order dated 26 September 2024 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 14 July 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director.

3.  Having considered the documents filed herein, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of India.  He first arrived in Hong Kong as a visitor on 12 January 2014, and had overstayed since 3 February 2014. He surrendered himself to the Immigration Department on 24 February 2014, and lodged a non-refoulement claim on 26 March 2014.  His claim was made on the basis that, if refouled, he would be harmed or killed by his brother (Kuldeep Singh), who held grudges against him due to his father’s refusal to accede to his brother’s request for selling a piece of land owned by his father to fund his business with the proceeds of sale.  Details of the Applicant’s claim raised in 2014 have been summarised by the Judge at §§5-15 of the CALL-1 Form ([2024] HKCFI 2591).

5.  By a Notice of Decision dated 16 February 2016 (“the 2016 Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to the following risks: risk of torture[1], BOR 3 risk[2], and persecution risk[3]. 

6.  Shortly afterwards and by a letter of 18 February 2016, the Applicant informed the Director that it was safe for him to return to India.  On 12 March 2016, he was removed to India.

7.  On 2 March 2021, the Applicant snaked into Hong Kong illegally.  On 15 March 2021, he was arrested by the police and was referred to the Immigration Department.  On the same date, he requested to make a subsequent claim for non-refoulement protection.  His subsequent claim was made essentially on the basis that, if refouled, his life would be threatened by his brother because, after joining the India National Congress towards the end of 2017 and becoming close to a member of the Legislative Assembly of Ajitwal, his brother continued to demand for a share of the land in question, but his father refused his demand.  Details of the Applicant’s subsequent claim have been summarised by the Judge at §§21-27 of the CALL-1 Form. 

8.  By a Notice of Decision dated 14 July 2021 (“the 2021 Decision”), the Director refused to allow the Applicant to make the subsequent claim.  The Director’s reasons for his decision have been summarised by the Judge at §§28-32 of the CALL-1 Form.  In essence, the Director considered that the Applicant’s subsequent claim was not supported by cogent evidence.  The Director disbelieved his allegation that his brother would target him, but not his father, for a share of the land in the circumstances where his father announced in 2008 that his brother no longer had any relation with his family.  The Director also took into account that his brother’s financial problem which he sought to resolve arose some thirteen years ago.  The Director was not satisfied that there had been a significant change of circumstances since the Applicant’s previous claim was determined, or that those changes when taken together with the materials previously submitted in support of his previous claim would give his subsequent claim a realistic prospect of success.

9.  On 28 July 2021, the Applicant filed a Form 86 seeking leave to apply for judicial review of “an appeal decision dated 14 July 2021” by the Torture Claims Appeal Board (“the Board”).  No ground for seeking relief was given in the Form 86.  In his supporting affirmation of the same date, he merely said that he was not satisfied with the decision by the Immigration Department.  Since the Board was not the decision maker of the 2021 Decision and a decision by the Director refusing a subsequent claim to be made under section 37ZO(5) of the Immigration Ordinance, Cap 115 is not appealable to the Board, the Judge correctly amended the Form 86 so that the Director became the Putative Respondent, and treated the 2021 Decision as being the subject matter of the application for leave to apply for judicial review.

THE JUDGE’S DECISION

10.  On 26 September 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[34] The Applicant did not advance any grounds for review in his Form 86. In his supporting affirmation, he stated that he was not satisfied with the Director’s decision and he wanted the Court to see his case in a proper way. He is seeking a re-determination of his request by the Court by way of judicial review, which this Court has no power to make. In effect, his ground of application is a direct challenge of the immigration officer’s finding of fact which for reason as explained in the preceding section is impermissible. In the absence proper or specific grounds or grounds with sufficient particulars, the Court would only focus on possible criticisms of the [2021 Decision] on the basis of error of law, unreasonableness and irrationality.

Discussion and conclusion

[35] Having rigorously examined the [2021 Decision], the [2016 Decision], the papers and the new evidence with anxious scrutiny, the Court is satisfied that the immigration officer correctly understood the law and key legal principles relating to non-refoulement protection the [Unified Screening Mechanism] and the relevant provisions under the Immigration Ordinance relating to the making of a subsequent claim, in particular section 37ZO; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

[36] The immigration officer considered the Applicant’s new evidence and rejected it as incredible.  He gave detailed reasons for his finding.  The Applicant had even failed to establish any subsequent claim, let alone that the new evidence could not constitute a significant change of circumstances.  That finding was sufficient to dispose of the Applicant’s request.  However, the officer went further and assessed the Applicant’s request on the basis that his new evidence was accepted and constituted a significant change of circumstances.  But even on that basis, he found that such change, when taken together with the materials submitted in support of the previous claim was not sufficient to give the subsequent claim a realistic prospect of success.  Hence, he refused the Applicant’s request. Basically, the Applicant had failed to discharge his burden of proof.  These are finding of facts, which are exclusively within the province of the immigration officer, which the Court in a judicial review will not interfere save when such finding involved errors of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the [2021 Decision]. The [2021 Decision] does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The [2021 Decision] is utterly without fault.  The proposed judicial review has no realistic prospect of success.”

11.  On 16 October 2024, the Applicant applied by summons for an extension of time to appeal against the Order.  By then, he was six days late to lodge his appeal.  On 23 December 2024, the Judge refused the application, holding that the Applicant had failed to provide any reasonable explanation for the delay and there was no prospect of success in his intended appeal ([2024] HKCFI 3686).

THIS APPLICATION

12.  By a summons taken out on 6 January 2025, the Applicant applied for an extension of time to appeal against the Judge’s order of 23 December 2024.

13.  In his supporting affirmation of the same date, the Applicant explained that he did not receive the Order timely.  The Applicant also complained about the following mattes:

(1)  The Judge did not take into account all relevant circumstances.

(2)  There was unfairness arising from his language incapacity and lack of legal assistance.  Acting as a self-represented litigant who was only assisted by his friends, it was difficult for him to understand the Judge’s decisions or to present his case against the Director’s decision without proper assistance.

(3)  He was unaware that he had to make a request in order to have an oral hearing.

14.  In his written submissions lodged on 20 January 2025, the Applicant essentially repeated his complaints raised in his supporting affirmation.  He further complained that there was procedural unfairness arising from the lack of other avenue for a non-refoulement claimant wishing to appeal against a decision based on credibility.  He asserted that his case was not determined fairly overall.

DISCUSSION

15.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  In the present case, the Applicant’s delay of six days is not insignificant, although it is not very substantial either.  We agree with the Judge that the Applicant’s assertion, namely, that he had moved out of his last reported address in Sau Mau Ping since 28 July 2021, is not a reasonable explanation for the delay.  We observe that on 26 September 2024, the CALL-1 Form and the Order were sent to the Applicant’s then reported address in Sau Mau Ping as stated in the Form 86 and confirmed by the Director in a letter dated 19 August 2024 without being returned through the undelivered post.  In any event, we shall focus on the merits of the Applicant’s intended appeal. 

18.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

19.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst,at §14(6)).

20.  The Applicant’s complaints raised in his supporting affirmation and written submissions, including that he was not aware of the need to request for an oral hearing, or that there was lack of language and legal assistance in the proceedings below, have already been considered by the Judge and correctly rejected for the reasons set out in the decision of 23 December 2024. 

21.  In respect of the complaint that the Applicant was not given an oral hearing in the proceedings below, there is nothing amiss in the Judge’s dealing with the Applicant’s leave application on paper as he did not request for an oral hearing.  See Order 53, Rule 3(3) of the Rules of the High Court and §2 of the CALL-1 Form.

22.  In respect of the complaint of unfairness arising from his alleged language incapacity and lack of language assistance, the Applicant was assisted by the Duty Lawyer Service in relation to the determination of his request for making a subsequent claim before the Director.  He plainly had language and legal assistance at that stage.  We note that all documents, written submissions and correspondence filed by the Applicant with this Court and below are written in English.  This indicates that the Applicant is either conversant with English, or has access to language assistance as needed.  Further, although he had no legal representation before the Judge, the consideration of his leave application to apply for judicial review by the Judge was thorough and fair. The Applicant has failed to show that he was inhibited from advancing any particular point or ground before the Judge by reason of the alleged lack of language or legal assistance.  In any event, the Court has repeatedly held that the high standard of fairness required to be observed in the assessment of a non-refoulement claim does not include the provision of language or legal assistance to a non-refoulement claimant at all times that he/she wishes to have such assistance.

23.  In respect of his complaint about the lack of other avenue to appeal against a decision by the Director on his request for making a subsequent claim, the Judge has correctly pointed out in the decision of 23 December 2024 that the 2021 Decision refusing his request to make a subsequent claim is not appealable to the Board under the existing non-refoulement regime.  There is no substance or validity in this complaint.

24.  The Applicant’s complaint of procedural unfairness on the ground that there is no avenue of appeal against a decision made on the basis of credibility has no merit.  First, the 2021 Decision was not based purely on the Applicant’s credibility.  Apart from finding that the Applicant’s account of events in support of his subsequent claim lacked evidential support and was inherently implausible, the Director also considered that there was no significant change of circumstances (see §§20-22 of the 2021 Decision).  Second, we do not see why a decision based purely on a non-refoulement claimant’s credibility is of itself unfair. Lastly, it is well established that the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the 2021 Decision is shown in the present case.  

25.  The remainder of the Applicant’s complaints consists of general assertions of the Judge’s failure to consider relevant circumstances and unfairness in the determination of his case, without any particulars.  We consider that a high standard of fairness has been achieved in the overall process of the determination of the Applicant’s request for making a subsequent claim.

26.  The Applicant has failed to raise any viable ground of appeal against the Order.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

27.  The Applicant’s summons taken out on 6 January 2025 is dismissed.

28.  If required, the Applicant may make an arrangement with the clerk of this Court for an oral interpretation of this judgment to him in his native language at a mutually convenient time in the Court’s premises.