RE SIMRANJIT SINGH

CAMP 179/2018

[2019] HKCA 360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 179 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 829/2017)

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J U D G M E N T

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

1.  This is an application for leave to appeal against the decision of Deputy High Court Judge Bruno Chan given on 5 October 2018 refusing leave to extend time for applying for judicial review. The intended judicial review was against the decision of the Director of Immigration dated 30 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 9 October 2014 and was permitted to remain until 11 October 2014.  He surrendered on 4 March 2016. He lodged a non-refoulement claim on 13 July 2016.

3.  The applicant’s claim was based on threats from his relatives arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form [2018] HKCFI 2067.

4.  By a Notice of Decision dated 30 June 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 September 2017, the Board dismissed the appeal on 29 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [30] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [35] that state protection would be available for the applicant and at [39] that internal relocation would be viable.

The deputy judge’s decision

7.  On 31 October 2017, the applicant filed a Form 86 apparently dated 6 October 2017 seeking to challenge the Director’s (but not the Board’s) decision, but which contained no ground for seeking relief.

8.  In the affirmation in support of the leave application dated 31 October 2017, the applicant said that “I am not satisfied to the Immigration Department Decision”.

9.  At the oral hearing before the judge, he confirmed that he only wished to challenge the Director’s Decision but not the Board’s Decision.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for leave to apply for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [17] of the CALL-1 Form:

“12. For judicial review of the Director’s decision made on 30 June 2017 the Applicant would be late with his application by about one month as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. The Applicant did not provide any explanation for his delay which cannot be said to be insignificant.

13. If on the other hand he had intended to challenge the Board’s decision as well notwithstanding his clarification at his oral hearing, he would be within time, but either way the fact is that he has not put forward any ground for his intended challenge such as any legal error or procedural unfairness or irrationality in either of the decisions at all.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 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 being 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 Re Litoun Mounsy [2018] HKCA 537.

15. Further, if his intended challenge were indeed only against the Director’s decision, in which it was also established that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is therefore no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins and Anor [2013] 1 HKC 526.

16. In the premises and having proceeded to consider 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.

17. For these reasons and notwithstanding having extended time for his application, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason to extend time, his application is accordingly hereby dismissed.”

Application for leave to appeal and grounds for appeal

11.  Following MI v Director of Immigration [2018] 4 HKC 440, leave to appeal is required when extension of time to apply for leave for judicial review is refused.  By a summons dated 19 October 2018, the applicant sought leave to appeal.  His application was dismissed by DHCJ Bruno Chan on 16 November 2018 [2018] HKCFI 2436.

12.  By a summons dated 29 November 2018, the applicant renewed his application before this court.  His application is supported by an affirmation dated 29 November 2018 where he stated that “I did not appeal in time 14 days because of almost delay”.

13.  The applicant did not provide any ground of appeal in the summons or affirmation. He did not file any draft Notice of Appeal.

14.  In his skeleton submissions dated 19 December 2018, the applicant explained why it is unsafe for him to return to India.  He gave details on the potential threats against him.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

16.  In his skeleton, the applicant only recited the facts giving rise to his claim. He did not identify any error committed by the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

17.  For these reasons, we do not see any prospect of success in the intended appeal. We will not grant extension of time for a hopeless appeal.  The summons of 29 November 2018 is dismissed accordingly.

18.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.