RE JAGSEER SINGH

CAMP 268/2021

[2022] HKCA 14

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 268 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1833 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 13 July 2020 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 1534). An earlier application for extension of time to appeal was refused by the Deputy Judge on 8 July 2021 (“the EOT Decision”)  ([2021] HKCFI 1890).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 24 August 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 5 December 2016 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 4 October 2014 and was arrested by the Immigration Department on 4 June 2015.  By a written representation dated 8 December 2015, the applicant lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by Labh Singh and his three sons due to a land dispute.  Details of the applicant’s claim were summarised by the Deputy Judge at [4] - [6] of the Leave Decision.

5.  By a Notice of Decision dated 5 December 2016, 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.  Both the applicant and the Director were legally represented and attended an oral hearing before the Board on 21 February 2018.  The applicant also gave evidence.  The Board dismissed his appeal on 24 August 2018 and confirmed the Director’s Decision.  The Board found on the evidence that the applicant had not made out a case where he required non-refoulement protection.  Having assessed the evidence, the Board also considered that state protection and internal relocation would be available to him upon his return to India.  Accordingly, the Board dismissed his appeal.

The Leave Decision

7.  On 4 September 2018, the applicant filed a Form 86 with a supporting affirmation for leave to apply for judicial review against the Board’s Decision.  No grounds were provided by the applicant in his Form 86 or his supporting affirmation.  As the applicant was absent during the oral hearing on 24 October 2019, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“DISCUSSION

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

‘13. (1)  … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.’

15. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

16.   Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Deputy Judge’s order 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 3 August 2020, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was seven days late with his intended appeal.  In his EOT Summons and supporting affirmation of the same date, he only asserted he did not understand the Court procedure because of his lack of knowledge and insufficient resources.

11.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal.  The Deputy Judge noted that the applicant was not able to say in what respect the Board had erred in the Board’s Decision and his grounds in support of his application for extension of time to appeal were not valid grounds to show that he had any reasonable chance of success in his intended appeal.  Accordingly, the EOT Summons was dismissed.

The Present Application

12.  By a summons dated 22 July 2021, the applicant reapplied for extension of time to appeal against the Leave Decision to this Court.  In his summons and supporting affirmation dated 22 July 2021, he again stated that he was late due to the lack of knowledge and insufficient resources.

13.  In his written submissions lodged on 27 July 2021, the applicant stated that he was not satisfied with all the decisions given on his case and that he would be in danger if refouled and his life would become worse due to his enemies.  He alleged that torture and deaths were common in police custody of innocent people and the police only gave support to those who gave bribes.  He said that even if someone like him would be willing to file an “F.i.R” in the police station, the police would directly tell those powerful people that he complained against them.  He also claimed that it would be very difficult to get justice in that corrupt environment and that he would be living under threat due to enemies who were strong in all ways.

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.  While a delay of seven days may not be regarded as significant, the prospect of success of the intended appeal is important and the Court will not grant extension for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702 at [19] and Re Rahman Wasif [2019] HKCA 299 at [13].

16.  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 decision of the Deputy Judge 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].

17.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

18.  Furthermore, it is pertinent to note that the matters as contended by the applicant in his written submissions are new grounds which were not made before the Deputy Judge.  It is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

19.  In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  As repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: 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].

20.  As the applicant has failed to identify any proper grounds of appeal, the intended appeal 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 dated 22 July 2021 dismissed.