RE GURPREET SINGH

CAMP 118/2021

[2021] HKCA 1740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 118 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 747 OF 2017)

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J U D G M E N T

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

Introduction

1.  On 9 August 2018, by way of a decision (“DHCJ Woodcock’s Decision”)  set out in Form CALL-1 ([2018] HKCFI 1764), Deputy High Court Judge Woodcock (“DHCJ Woodcock”)  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 17 August 2017 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 28 December 2016 (“the Director’s Decision”).

2.  The 14-day time period for the applicant to appeal DHCJ Woodcock’s Decision provided under Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A)  (“the RHC”)  expired on 23 August 2018.  On 7 May 2020, the applicant sought extension of time to appeal DHCJ Woodcock’s Decision.  He was almost two years out of time.

3.  On 24 July 2020, the Deputy High Court Judge KW Lung (“DHCJ Lung”)  refused to grant extension of time to the applicant (“the Extension of Time Decision”).

4.  By a summons dated 14 April 2021 (“the CA Summons”), the applicant sought to appeal the Extension of Time Decision 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 26 May 2021 concerning the conduct of the application.  Paragraph 8 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

5.  The applicant is a national of India.  He came to Hong Kong on 31 May 2009 as a visitor but overstayed since 15 June 2009.  He was arrested by the police on 11 July 2009.  On 13 July 2009, he lodged a torture claim which was eventually rejected on 16 April 2014.  On 5 September 2013, the applicant against lodged a claim for protection on the grounds of cruel, inhuman or degrading treatment or punishment.  Upon the commencement of unified screening mechanism, his claim was assessed on all applicable grounds other than torture risk[1].

6.  The applicant’s personal background and his claim were summarized at paragraphs 12 - 42 the Director’s Decision and paragraphs 15 - 37 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that he would be harmed or killed by supporters of Akali Dal Party (“ADP”), namely, Sarvan and Gurnam if he was returned to India.  The applicant claimed to be a supporter of Congress Party (“CP”).  In mid-2008, there was an election in which the village head would be elected between members of ADP and that of CP. Sarvan of ADP won the election.  Three months after, the members of ADP and those of CP engaged in a fight, during which the applicant was injured.  Later in October 2008, the applicant had a dispute with Gurnam who was also a member of ADP, leading to the detention of the applicant’s father in a police station.  While he escaped, the applicant heard that Sarvan and Gunnam intended to frame him and send him to jail.  Out of fear, he eventually fled to Hong Kong for protection.

The Director’s Decision and the Board’s Decision

8.  By way of the Director’s Decision, the Director assessed and dismissed the applicant’s non-refoulement claims on the BOR3 risk[2], persecution risk[3] and BOR2 risk[4].

9.  The applicant lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 14 July 2017, during which the applicant answered inquiries from the Board.  After hearing the applicant, and considering his evidence in the non-refoulement claim form, the Board found that the applicant’s intention to seek protection was suspicious and his version of events was implausible (paragraphs 41 - 43 of the Board’s Decision).  It also found that the nature of the applicant’s alleged dispute was a private one (paragraph 45 of the Board’s Decision)  and that he was never harmed by members of ADP (paragraph 46 of the Board’s Decision).  In any event, state protection was available to the applicant (paragraphs 47 - 56 of the Board’s Decision).  As a result, the Board dismissed his appeal.

DHCJ Woodcock’s Decision

10.  On 10 October 2017, by way of a Form 86, the applicant sought leave to challenge the Board’s Decision.  In a letter to court dated 25 October 2017, the applicant sought to add the Director as the putative respondent.  In the document titled “Rider B”, the applicant listed grounds of review against the Director and the Board, which were all rejected by DHCJ Woodcock at [20] - [28] of DHCJ Woodcock’s Decision:

“20.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the decisions of the Director and the adjudicator to be without fault. They have both analysed the material, claims and evidence carefully. The applicant’s complaints against them and the procedure undertaken are not made out.

21.  The grounds against the Director are essentially as follows; the first ground is that the Director failed to properly consider the concept of extended State acquiescence. The applicant did assert that the police in India would not help him because they would automatically side with the ADP as the ruling party in the Punjab and they were corrupt. However, the Director did consider the applicant’s own evidence that they released the applicant’s father after they arrested him two hours later. It was his own evidence that the police stopped harassing his parents when they obtained a letter from a government authority revealing that his parents were never involved in the applicant’s case. It was his own evidence that the police were taking action to investigate the ADP suspects after the murder of the CP leader in his village which showed that the police were compiling with the rule of law and discharging their statutory duties. It was his own evidence that he never informed the police that he had no involvement in the three purported false criminal cases.

22.  The Director considered Country of Origin Information (‘COI’)  that did support the applicant’s allegations of police corruption but also considered COI that indicated police officers or political leaders were arrested and jailed for corruption and misconduct. There was COI that showed reforms were in place to combat corruption and there were alternative avenues to seek justice in India which led the Director to conclude there was reasonable State protection available to the applicant if he was at any risk if refouled.

23.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts or torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons. The Director did not have to seriously consider the concept of extended State acquiescence. In his affirmation the applicant has stated he was tortured at the behest of and in full collusion of the police, State law enforcement agencies as well as political parties and his misfortunes were a direct result of misconduct of police officers. He accuses the Director of failing to take into account the failure of the Indian government in protecting him. This was not his evidence and unfortunately his affirmation is misleading. There is no merit in this ground.

24.  The applicant’s second ground against the Director is that he has failed to consider give sufficient weight to COI that is in the applicant’s favour. He places too much weight on COI that goes against the applicant’s submissions. The Director has failed to adhere to a high standard of fairness and his decision is Wednesbury unreasonable. The issue I have with this ground is that there are no particulars to support it. I am satisfied that the Director has referred to up-to-date, relevant and objective COI and found COI in the applicant’s favour as well as COI that supports his finding that if the applicant was at risk there is available State protection plus, according to the COI, internal relocation is available without undue hardship. There is no merit in this ground.

25.  There is only one ground against the adjudicator and that is he failed to give the applicant sufficient chance to obtain evidence to support his claim and appeal. However, the adjudicator records in his decision that the applicant gave evidence in the oral hearing and adopted as evidence what was in the appeal bundle. There is no record of him asking for any opportunity or chance to obtain more evidence to support his claim appeal.

26.  In any event, he has been saying from as early as 2013 that he will be submitting documentary evidence to support his claim, in particular the First Information Reports but they are yet to be seen. The only record of a mention of these documents in the appeal hearing is that the applicant told the adjudicator that it was difficult to obtain these documents and he confirmed he was unable to provide such documentary evidence to the TCAB (see para 36 of the adjudicator’s decision). That is not the same as a request for more time. There is no merit in this ground.

27.  I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

28.  In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

The Extension of Time Decision

11.  On 7 May 2020, the applicant sought extension of time to appeal DHCJ Woodcock’s Decision.  By way of the Extension of Time Decision, DHCJ Lung dismissed the applicant’s application on the basis that his intended appeal had no prospect of success.  Thus, DHCJ Lung concluded that it would be futile to extend time.

Renewed application for extension of time to this Court

12.  In the CA Summons and his supporting affirmation, the applicant only stated that the Extension of Time Decision was unfair and unreasonable.  As to his delay, he explained that he was not aware of the time limit and that he did not receive the decisions in time.

Legal principles

13.  As it has been repeatedly said, although it is technically possible to appeal against the Extension of Time Decision, it is more appropriate to renew the application for extension of time before this Court.  See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8]. We will therefore treat the application as a renewed application for extension of time to appeal against DHCJ Woodcock’s Decision.  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.

14.  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.

15.  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

16.  The applicant’s delay of almost two years is very substantial in the context of a statutory time limit of 14 days.  The applicant failed to provide any cogent explanation for the delay.  His explanation that he did not receive the decisions is hopelessly unacceptable, and in any event without evidential support, for such a lengthy delay.  Further, ignorance of the law is generally not an excuse for delay: Re Gurung Min Bahadur [2018] HKCA 226 at [10].

17.  In any event, as mentioned at [12] above, the applicant simply failed to advance any grounds with particularities pointing out any errors in DHCJ Woodcock’s Decision.  Hence, there are no viable grounds of appeal, and no merits in the intended appeal.  It would be futile to extend time.  We therefore dismiss the CA Summons.