RE GHARU VEER SINGH

CAMP 152/2023, [2024] HKCA 248

On Appeal From [2022] HKCFI 836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 95 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2570 OF 2018)

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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):

1.  By a summons filed on 13 April 2023, the applicant reapplied to this Court for extension of time to appeal against the order made by Deputy High Court Judge P Li (“DHCJ Li”)  dated 24 March 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 836)  (“the Leave Decision”).  His earlier application for extension of time to appeal was refused by Deputy High Court Judge Bruno Chan (“DHCJ Chan”)  on 16 March 2023 ([2023] HKCFI 761)  (“the EOT Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 25 October 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 1 March 2017, by which the Director rejected his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of India.  He last entered Hong Kong on 5 April 2011 and was refused entry.  He had made a torture claim on 6 April 2011 which was refused by the Director on 30 November 2012.  On 4 March 2014, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by Makhan Singh Brar (“Makhan”)  who was a member of the legislative assembly representing Akali Dal party and who had some conflict with the applicant’s employer and accused the applicant for having burnt down his shop. Factual details of the applicant’s claim were summarised by the DHCJ Li at [1] - [9] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk[1], namely, BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  Having assessed all the evidence, the Director considered that his claim failed on all applicable grounds.

6.  On 9 March 2017, the applicant appealed against the Director’s Decision to the Board.  On 4 October 2018, he attended an oral hearing before the Board and a Punjabi interpreter was present to provide language assistance.  By the Board’s Decision, the Board dismissed his appeal.  Having considered the evidence, the Board found that the applicant’s evidence was not credible and that there was no real risk of harm.  There were inconsistences in the applicant’s evidence and the applicant failed to recall key details as to his claim (eg, the name of his former employer)  or provide supporting evidence substantiating his bare assertions.  The Board further found that internal relocation would be available to the applicant upon refoulement.

The Leave Decision

7.  On 15 November 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not advance any ground of review and only stated in his affirmation that the Board’s decision was unfair and unreasonable without providing any further elaboration.  The applicant has failed to attend the oral hearing on 10 January 2022 before DHCJ Li.

8.  Shortly after the hearing, the applicant has filed an affirmation for withdrawal of the leave application on 10 January 2022.  However, on 26 January 2022, he applied to re-instate his leave application.

9.  By the Leave Decision, DHCJ Li dismissed the applicant’s applications.  His reasons were set out in detail at [15] - [23] of the Leave Decision:

“15. The applicant filed the leave application for judicial review on 15/11/2018. The applicant lodged some written grounds for judicial review on 11/2/2021. He alleged that the adjudicator had not analyzed the facts and the supporting documents. The adjudicator had relied on cases which were outdated.

16. The allegations made against the adjudicator were vague. The adjudicator had analyzed the facts in great detail. The adjudicator had pointed out some doubtful areas to the applicant during the oral hearing. The applicant refused to answer further questions. In the circumstances, the adjudicator was entitled to decide the issue in the absence of credible explanation.

17. The applicant had not filed any documents. Although he indicated his intention to file the death certificate of his good friend, he did not do so. There was no supporting document which needed consideration by the adjudicator.

18. This court fixed a hearing on 10/1/2022. The applicant was absent. The notice of hearing was sent to his last known address updated on 18/1/2021. There was no return of mail. This court decided to consider the claim on paper.

19. It transpired that the applicant filed an affirmation for withdrawal of the leave application on 10/1/2022 shortly after the hearing. Before this court made any order, he applied to re-instate his leave application on 26/1/2022. In any event, this court would deal with the merits of his leave application on paper as if the leave application was re-instated.

20. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB.

21. As summarized above, the adjudicator in effect rejected the evidence of the applicant as it was not credible. He found that there was no real risk of harm.

22. There is no error of law or procedure. The TCAB decision is reasonable. This court agrees with the conclusion of the adjudicator.

Conclusion

23.  The intended judicial review is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.”

The EOT Decision

10.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

11.  On 20 October 2022, the applicant filed a summons  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was over six months late with his intended appeal.  In his summons and supporting affirmation, he claimed he did not receive the court’s order without further explanation and disagreed with the Leave Decision without explaining why.

12.  An oral hearing was held on 9 March 2023 and the applicant appeared in person.  A Punjabi interpreter was also present to provide language assistance.  During the oral hearing, the applicant claimed that his wife was pregnant with their child and was suffering from related medical issues.  He claimed he was too busy to looking after her and forgot to file his intended appeal without the required time period.

13.  By the EOT Decision, DHCJ Chan noted that the Leave Decision was sent on the same day to the last reported address of the applicant without being returned through undelivered post, and no supporting evidence was provided to corroborate with the applicant’s purported explanations.  As such, the court was not satisfied that the applicant had provided any good reason for his extremely substantial and inordinate delay.  Further, as the applicant also failed to advance any proper ground of appeal, there was no prospect of success in his intended appeal.  Accordingly, DHCJ Chan dismissed his application for extension of time to appeal.

The Present Application

14.  By a summons and supporting affirmation both filed on 13 April 2023, the applicant reapplied to this court for extension of time to appeal against the Leave Decision.  In his summons, he did not advance any ground of appeal and only stated he did not get the letter from the court on time.  In his supporting affirmation, he only stated that he did not agree with the Leave Decision.

15.  Pursuant to the directions made by the Registrar of Civil Appeals on 13 April 2023, the applicant lodged his written submissions on 27 April 2023.  In those submissions, he only reiterated the factual basis and procedural history of his non-refoulement claim and that he disagree with the decisions made by the Board and the Director.

Discussion

16.  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 success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

17.  We consider that the applicant’s delay of almost six months as very substantial and inordinate and we agree with DHCJ Chan that the applicant had failed to give any good reason for his delay.  As such, the court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

18.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that DHCJ Li made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

19.  In our view, the applicant’s application has no merit at all and must fail.  At the outset, he failed to specify any ground of appeal and his assertions are all general and bare assertions without pointing out any specific error in the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, his assertions are not viable grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  His appeal must fail on this basis alone.

20.  For the above reasons, the intended appeal is a non-starter and has no prospect of success.  It will be futile to extend time. The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 13 April 2023 is dismissed.