RE SINGH SATVEER

CAMP 357/2021

[2022] HKCA 298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 357 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 815 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang (“Judge”) on 15 July 2020[1] refusing to grant leave to apply for judicial review. The intended judicial review is directed against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 27 April 2018. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 10 July 2015 and 19 June 2017 rejecting the applicant’s non-refoulement claim.

2.  On 13 August 2021, Deputy High Court Judge To refused to extend time for the applicant to appeal against the Judge’s decision of 15 July 2020.[2]

Background

3.  The applicant is an Indian national born in 1970. He arrived in Hong Kong on 8 May 2015 and was refused permission to land, whereupon he lodged his non-refoulement claim on the same day.

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by Suraj Singh, of the Samajwadi Party, because he unsuccessfully contested him in an election for the position of village head in June 2013. The applicant said Suraj Singh was a gangster involved in many criminal activities but is connected with the local police and the State Minister. He and his supporters made threats to the applicant prior to the election. Suraj Singh won the election but was still dismayed that the applicant had dared to challenge him, and with his supporters assaulted the applicant in August 2013. In fear of harm, the applicant came to Hong Kong in 2015. The more detailed factual background was set out at paragraphs 28 to 42 of the Board’s decision.

5.  By notices of decision dated 10 July 2015 and 19 June 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. The former covered BOR 3 risk,[3] persecution risk,[4] and torture risk;[5] the latter covered BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 28 September 2017, during which the applicant answered questions from the Board with assistance from a Hindi language interpreter. The Board noted that no harm had come to any member of the applicant’s family. It found that the applicant’s past experiences did not meet the requisite level of severity to amount to persecution, torture or ill-treatment for the purposes of BOR 3, and that there was no suggestion that the applicant’s rights under BOR 2 would be violated. Thus the Board found that there was no real risk of harm in the event of refoulement. The Board also found that even if the applicant faced a real risk of harm as claimed, such risk was confined to the local area where he and his family lived. Internal relocation was viable. The applicant had faced no problems whilst living in Delhi after the incident complained of. In the result, the Board dismissed the applicant’s appeal on 27 April 2018 in relation to all applicable grounds.

The Judge’s decisions in the court below

7.  On 10 May 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his Form 86, the applicant stated that the refusal of his claim had not been carefully considered. In his supporting affirmation, he stated that the decision was unreasonable in that not all matters raised in the claim were considered, nor were adequate reasons for the decision given.

8.  Following consideration of the documents only, on 15 July 2020 the Judge refused to grant leave to apply for judicial review, for the reasons set out at [11] – [26] of the Form CALL-1 as follows:

“ 11. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12. The Director’s decisions are superseded by the Board’s decision and hence not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, the Court will only focus on the latter’s decision.

13. The grounds raised by the applicant are only general and vague assertions, without any particulars as to how the Director or the Board were unfair or unreasonable in the public law sense. The grounds are his opinions only and not supported by evidence.

14. In the present case, the Board gave adequate reasons for its findings. It demonstrated in its decision that it took into account of all the circumstances as the applicant claimed. Even on the basis of the claimed incidents, the Board found that the claimed fear of harm could not be substantiated. In any event, any such risk was confined to the area he used to live. The risk of harm could be effectively eliminated by internal relocation without hardship.

15. As mentioned, such matters are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so. I cannot see any basis to challenge the Board’s findings. I should add that even in his own case, the applicant was able to live uneventfully for 13 months in Delhi and later spent a 2-month trip to Indonesia, Bangkok and Myanmar. After the trip, he still chose to return to Delhi. Such evidence is inconsistent with a real fear of harm in India.

16. Having reviewed the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, 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.”

9.  The applicant did not appeal against the Judge’s decision within the 14-day period prescribed by rules of court, but on 18 August 2020, the applicant took out a summons to seek an extension of time to appeal. In his supporting affirmation, the applicant explained that his appeal was late because he does not understand English or court procedures; he was initially not aware if there was a deadline for appeal; he was told by a friend erroneously that his case “could not go forward”; and he did not have financial resources to get proper help.

10.  Following consideration of the documents only, on 13 August 2021, Deputy High Court Judge To refused to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and dismissed the summons.

The renewed application before this Court

11.  On 26 August 2021, the applicant filed a summons seeking leave from this Court for extension of time to appeal against the Judge’s refusal to grant leave for judicial review. In the summons, the applicant explained that he did not get a letter from the court. However, he did not specify any grounds of appeal either in the summons or in the accompanying affirmation.

12.  The applicant lodged written submissions on 9 September 2021, in which he briefly referred to the factual background as well as the procedural history of his case. However, he still did not set out any grounds of appeal or point out any errors made by the Judge.

13.  Having considered the available materials, we consider it appropriate to deal with the application on the basis of the documents without an oral hearing.

Discussion

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.  The applicant was only late by 2 days when he filed his summons in the Court of First Instance seeking an extension of time (taking into account the Court’s summer vacation in August). As the delay was short and the applicant was not legally represented, we shall determine the present application on the basis of the merits of the intended appeal.

16.  In assessing the merits, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

17.  In the present case, the Board, having considered the applicant’s written claims and heard him at the appeal, ultimately rejected his non-refoulement claim due to its finding that there was no past harm of the requisite level, and no real risk of harm in the event of refoulement. The Board also found that any risk, even if established, was confined to the local area and that internal relocation within India was viable. On the facts and evidence of this case, these findings are within the province of the Board. The applicant has failed to identify, nor are we able to discern, any public law ground on the basis of which the court may properly interfere with such assessments.

18.  Nor has the applicant identified any viable ground of appeal or any possible error committed by the Judge.

19.  In the absence of any reasonably arguable ground for judicial review, the Judge was right to refuse leave to apply for judicial review.

20.  For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons of 26 August 2021 is accordingly dismissed.