RE GURPREET SINGH

CAMP 253/2022, [2023] HKCA 590

On Appeal From [2022] HKCFI 799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 253 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2825 OF 2018)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  dated 21 March 2022[1] refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission to support the application.  

3.  Under Order 59 rule 2A(5)(a)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of India aged 33.  He entered Hong Kong 0n 14 August 2013 and was given permission to remain as a visitor until 28 August 2013.  He overstayed and was arrested by the police on 8 September 2013.  On 10 September 2013, he raised a non-refoulement claim based on his fear of being harmed or killed by his father because he went against his father’s wish and continued his relationship with his girlfriend, who came from a poor family.  The details of the applicant’s claim were set out in the first decision of the Director of Immigration (“the Director”)  at [6]. We will not repeat them.     

5.  By two decisions dated 6 January 2016 and 1 February 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds and the further decision related to the BOR 2 risk[5] ground. 

6.  The applicant appealed the Director’s rejection of his claim to the Torture Claims Appeal Board (“the Board”).  At the hearing held on 19 July 2017, the applicant elected not to give evidence and declined to answer questions from the Board.  By its decision dated 25 August 2017, the Board dismissed the appeal.  In summary, the Board considered that on the evidence the applicant failed to make out a case that he really needed non-refoulement protection.  Further, for the reasons set out in [28] to [43], the Board found that the applicant’s case did not meet the requirements for non-refoulement protection under all applicable grounds.  The Board further found that state protection and internal relocation options are reasonably available to the applicant.  The Board concluded that he failed to establish entitlement to non-refoulement protection under any of the applicable grounds.

7.  On 10 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to apply for judicial review.  Order 53 rule 4(1)  of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s Form 86 is accordingly out of time by more than a year. 

8.  The grounds relied on by the applicant for seeking relief are: (1)  The Director and the Board were wrong in their assessments of the claim, especially under the BOR 2 risk ground; (2)  The Board did not give him sufficient time to arrange relevant evidence and his appeal; (3)  There was a case of a person, after being deported from Hong Kong, was killed by his enemy in his home country; (4)  The Director held an unfair  attitude and failed to attain the high standard of fairness; and (5)  There was corruption and incompetency of the administration in his country.    

9.  The Judge dealt with the application on papers.  By a Form CALL-1 dated 21 March 2022, the Judge dismissed the application.  The gist of his reasons is encapsulated in [22] to [25] as follows (footnote omitted):

“22. The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim. See section 37ZA (1)(a). As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. High standards of fairness gives no exemption to the applicant for the compliance of the Ordinance.

23. I therefore consider that it is legitimate for the Board to draw adverse inference against the applicant’s credibility on the facts of his case.

24. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

25.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

10.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  As the High Court Registry was closed from 7 March to 11 April 2022 due to public health situation caused by COVID-19[6], the time for the applicant to appeal the Judge’s decision expired on 26 April 2022.

11.  By a summons filed on 4 May 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on papers, and by his decision handed down on 14 June 2022[7] refused to extend the time for appeal. 

12.  On 14 July 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.  

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted. 

14.  The applicant was out of time by about a week.  He explained that it was due to his lack of knowledge and resources.  Given that it was not a significant delay, we would focus on the merits of the intended appeal.  

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. Among them, the following are of particular relevance to the present application:

(1)  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.  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.

(2)  Assessment of credibility and evaluation of risks of harm are matters for the Director and the Board, who are the primary decision makers.  The Court in judicial review proceedings exercises a supervisory role, and will only intervene with a primary decision maker’s decision if there is error of law, irrationality or procedural irregularity or unfairness.

16.  In the summons and affirmation, the applicant did not set out any ground in support of the application. 

17.  In the written submission, the applicant made the following points:

(1)  Many things in his case were ignored by the Director and the Board.

(2)  The real situation in his country was different from what the Director and the Board thought. 

(3)  The police and other authorities were subject to the political influence of his enemy.  Even if someone wants to be a witness against them, he may disappear or be killed by people hired by them.   

(4)  He would be in danger in his country.  He has no means of standing against his enemy.

(5)  People are helping him to solve his problem and may reach some fruitful conclusion.  But at this point, he cannot go home.

18.  For the reasons set out below, we are of the view that the matters put forward in the written submissions do not constitute viable grounds of appeal:

(1)  The applicant only made vague, general assertions that lack particulars.  For example, it has not been explained what are the matters that the Director or the Board had failed to consider; and what are the material differences between the situation in his country and those in the COI relied on by the Board.   

(2)  The applicant has not pointed to any error in the Board’s decision and reasons.

(3)  Importantly, the applicant has not explained his one-year delay in filing the Form 86.  The Judge cannot be faulted in refusing to extend the time and dismissing the application.   

19.  We have separately considered the Board’s decision.  Like the Judge, we also do not discern any viable ground to disturb the Board’s decision.  We agree that the intended judicial review has no prospect of success and the Judge was correct in refusing to give leave to apply for judicial review.  

20.  As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 14 July 2022.