RE GURCHARAN SINGH

HCAL 1851/2018

[2021] HKCFI 539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1851 of 2018

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DECISION

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Background

1.  On 18 June 2019, Deputy High Court Judge Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review (“the Judge’s order”) against the decision of the Torture Claims Appeal Board/ Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 29 August 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 27 December 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant failed to attend the hearing scheduled for him on 12 December 2019.  The Judge proceeded to consider the applicant’s application on paper.

3.  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 that there is nothing from the applicant or from the Board’s decision for the court to interfere with the Board’s decision, and the applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

4.  By a summons filed on 3 July 2020, the applicant applied for extension of time to appeal against the Judge’s order.  The applicant had 14 days from that order to apply to appeal 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 2 July 2020.  He was therefore late by just one day with his intended appeal.

5.  In his summons and supporting affirmation, the applicant did not explain the reason for his late application.  Nor did he provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge.  In his summons, he stated that he wanted to give the court a “more complete picture” about his case and asked the court to provide legal representation in his oral hearing.

6.  At the hearing on 26 January 2021, he explained his application was late because he did not receive the Judge’s order but received a telephone call from a court staff telling him that his High Court case was finished and that he needed to go to court again.  When clarified about his request for legal representation in his summons, he denied making such a request.  In any event, he confirmed that he was happy to proceed with the hearing without a lawyer.  He also said that he could not point out any error of the Judge in his decision.

Discussion

7.  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.

8.  The applicant explained that he had not received the Judge’s decision, but he received a call from someone claiming to be a court staff saying that his case was finished.

9.  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.  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.  Moreover, it is not the usual practice for a court staff to inform an applicant by telephone the result in a non-refoulement judicial review application and require him to come to the court.  The applicant’s assertion is incredible.  In any event, the delay in the application was only one day late and insignificant.  Therefore, the more important factor is still the merit of his application.

10.  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.

11.  In the present case, the Board’s decision was mainly based on its adverse findings on the credibility of the applicant about his land dispute with his uncle.  The Board did not accept that there was such a dispute; that his father was killed by his uncle; that his uncle had attempted to harm the applicant.  Further, even if he had the fear as he alleged, it was not harsh for the applicant to relocate to other places in India.  On the evidence before the Board, the findings were plainly open to the Board.  Such findings were within province of the Board, not to be interfered with, without errors or irrationality or procedural unfairness found by the Judge.  The applicant did not set out any grounds in support of his application for judicial review.  Having considered all the materials, the Judge found no basis to interfere with the decision of the Board and that there was no reasonable prospect of success for his intended judicial review.

12.  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.

13.  Having considered the materials before me, I am of the view that the findings by the Board on the lack of credibility of the applicant and availability of internal relocation alternative are justified.  I share the Judge’s view that the applicant’s intended judicial review was not reasonably arguable and that leave to apply for judicial review should be refused. 

Conclusion

14.  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 extension of time to appeal and the summons dated 3 July 2021 taken out by the applicant is dismissed.