RE RAJINDER SINGH

CAMP 135/2021

[2021] HKCA 1745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 135 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 570 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  On 17 August 2020, by way of a decision (“the Deputy Judge’s Decision”)  set out in Form CALL-1 ([2020] HKCFI 2006), Deputy High Court Judge Bruno Chan (“the Deputy 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 28 March 2018 (“the Board’s Decision”), as well as the decisions of the Director of Immigration (“the Director”)  dated 2 September 2016 (“the Director’s First Decision”)  and 14 November 2017 (“the Director’s Second Decision”).

2.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.  The 14-day time period for the applicant to appeal the Deputy Judge’s Decision provided under Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A)  (“the RHC”)  expired on 31 August 2020.  On 17 September 2020, the applicant sought extension of time before the Deputy Judge to appeal the Deputy Judge’s Decision.  He was 17 days out of time.

4.  On 4 March 2021, the Deputy Judge refused to grant extension of time to the applicant (“the Extension of Time Decision”).

5.  By a summons dated 29 April 2021 (“the CA Summons”), the applicant renewed his application to appeal out of time before this Court.  Under Order 59, rule 14A(1)  of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  Directions were given by the Registrar of Civil Appeals to the applicant on 3 June 2021 concerning the conduct of the application.  Paragraph 6 of those directions also stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the paper.  After considering the documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of India.  He first came to Hong Kong on 17 April 2014 but was refused to land.  Two years after being removed to India, the applicant sneaked back into Hong Kong illegally and was arrested by the police on 18 January 2016.  On 22 January 2016 and 1 February 2016, he lodged a non-refoulement claim by way of written representation.

7.  The applicant’s personal background and his claim were summarized at paragraph 10 of the Director’s First Decision and paragraphs 23 - 48 of the Board’s Decision.

8.  Briefly stated, the applicant claimed that he would be harmed or killed by his uncles who belonged to an opposing political party over a land dispute if refouled.  The applicant stated that he had been a supporter of Bharatiya Janata Party (“BJP”)  and his parental uncles were members of Indian National Congress Party (“Congress Party”).  In around 1991 or 1992, the applicant’s father purchased a piece of land from the applicant’s parental uncles.  After his father passed away, the applicant was threatened by the parental uncles for the return of the land in 2009.  Under the pressure from the police and village head, the applicant gave the land to his parental uncles.  Nevertheless, the applicant initiated a case for the land against his uncles.  After the election in 2012, the Congress Party remained a powerful group.  In 2014, apart from being threatened to join the Congress Party, the applicant was also assaulted for not withdrawing the case against his uncles.  The applicant was then taken by the police and detained there with little food and water.  He also claimed to have been beaten up by the police.  He was later released from custody after his wife bribed the police.  Out of fear, he eventually fled to Hong Kong for protection.

The Director’s Decisions and the Board’s Decisions

9.  By way of the Director’s Decisions, the Director assessed and dismissed the applicants’ non-refoulement claims on the BOR3 risk[1], persecution risk[2], and torture risk[3] in the Director’s First Decision, and the BOR2 risk[4], in the Director’s Second Decision.

10.  The applicant lodged an appeal to the Board against the Director’s Decisions.  An oral hearing was held on 27 November 2017.  After hearing the applicant, and considering his evidence in the non-refoulement claim form, the Board found that the applicant’s version of events was not plausible as the account he gave the Board was in many aspects different than that before the Director (paragraphs 51 - 64 of the Board’s Decision). Such differences greatly undermined his credibility which casted doubt on the truth of his claim (paragraphs 65 - 74 of the Board’s Decision).  On this basis, the Board dismissed his appeal against the Director’s Decisions.

The Deputy Judge’s Decision

11.  On 6 April 2018, by way of a Form 86, the applicant sought leave to challenge the Board’s Decision and the Director’s Decisions by way of judicial review[5]. The applicant did not request an oral hearing.  After considering the documents, the Deputy Judge refused to grant him leave to apply for judicial review.  The Deputy Judge set out his reasons for refusal at paragraphs 17 - 22 of the Deputy Judge’s Decision:

“17. On 6 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he was not satisfied with the decisions and asked that his claim be reconsidered but without providing any proper or valid ground as to any error of law or procedural unfairness in his process before them or in their decisions for his intended challenge. Nor did he request any oral hearing for his application. As such I do not find any reasonably arguable basis for his intended challenge.

18. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 65 - 74 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

20. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

21. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law 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.

22.       For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Application for extension of time

12.  On 17 September 2020, the applicant took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.  By way of the Extension of Time Decision, the Deputy Judge dismissed the applicant’s application on the basis that he failed to provide any good reason for the substantial delay and that his intended appeal had no prospect of success.  Thus, the Deputy Judge concluded that it would be futile to extend time.

Renewed application for extension of time to this Court

13.  On 29 April 2021, the applicant renewed the application for extension of time to appeal before this Court.  In the CA Summons and his supporting affirmation, the applicant simply stated that he did not receive the Deputy Judge’s Decision.  He did not identify any specific errors in the Deputy Judge’s Decision.

Legal principles

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 the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted.

15.  Even if the court accepts that the applicant’s explanation for delay is reasonable, an applicant still has to show that the appeal has a reasonable prospect of success before extension of time will be considered.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

16.  In this respect, in assessing the merit of the intended appeal, we shall 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].  For the purpose of this application, the principles can be summarised as follows:

(1)  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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, 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.

(4)  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 decision of the judge, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1)  of the RHC.

Discussion

17.  A delay of 17 days is not insignificant, the applicant failed to provide any cogent explanation for the delay.  No details or particulars were provided as to why the applicant did not receive the Deputy Judge’s Decision despite it was delivered without being returned.  Thus, we agree with the Deputy Judge that the applicant did not provide any good reason for the delay.  Further, as mentioned at [13] above, the applicant simply failed to advance any grounds with particularities pointing out any errors in the Deputy Judge’s Decision.  These are not viable grounds of appeal, and there are no merits in the intended appeal.  It would be futile to extend time.  We therefore dismiss the CA Summons.