RE NIRMAL SINGH

HCAL 2895/2018

[2020] HKCFI 3075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2895 of 2018

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DECISION

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Background

1.  On 7 August 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 6 December 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 6 March 2018 rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant leave to the applicant to apply for judicial review for reasons stated in [12-16] of his decision (Form CALL-1).  Significantly the Judge found the applicant’s intended application for judicial review had no reasonable chance of success.

3.  By a summons filed on 17 September 2020, the applicant applied for extension of time to appeal against the Judge’s refusal of leave.  The applicant had 14 days from the order of the Judge to apply to appeal that decision to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time.  The 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 21 August 2020. He was therefore late by nearly 4 weeks with his intended appeal.

4.  In his summons and supporting affirmation of 17 September 2020, the applicant stated that he did not get the court’s order on time without explanation.  Nor did he provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge.

5.  At the hearing, he said he did not get the court’s order because the letter box was broken by someone.  As for his grounds of appeal, he simply said that he was not satisfied with the court’s decision.

Discussion

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

7.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

8.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

9.  I do not accept the applicant’s explanation.  According to the court’s record, the Judge’s order and the Form CALL-1 were properly served upon the address given by the applicant, who is still using that address.  The documents were sent to the applicant by post and have not been returned to the High Court as unclaimed or undelivered.  Presumably the documents reached the destination.  In fact, the applicant attached to his summons a sealed copy of the court’s order.

10.  I do not accept the applicant’s explanation for the delay.  In my view, the applicant does not have a cogent explanation for the delay.  The delay is not excusable.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.  In any event, I find that his application has no prospect of success.

11.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [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.  Assessment of evidence and evaluation of risk 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.  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.

12.  In the affirmation in support of his application for judicial review, the applicant only stated that he was not satisfied with the Board’s decision.  The Judge found that it was only his own opinion without any evidence or specific in support, the findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

13.  In the present application, the applicant has not identified any grounds of appeal or errors in the Judge’s decision.  None could be ascertained from the papers or at the hearing.  Not being satisfied with the court’s decision is not a viable ground of appeal.

14.  Having considered the materials before me, I am of the view that the findings by the Board and the Judge’s observations are justified.  I share the Judge’s view that the applicant’s intended judicial review has no reasonable chance of success and that leave to apply for judicial review should be refused.

Conclusion

15.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 17 September 2020 taken out by the applicant is dismissed.