RE MANJEET SINGH

CAMP 429/2021

[2022] HKCA 357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 429 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1307 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.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 26 March 2021 refusing to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2021] HKCFI 732). An earlier application for extension of time to appeal was refused by the Deputy Judge on 4 August 2021 (“the EOT Decision”) ([2021] HKCFI 2007).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 13 August 2015[1] (“the Board’s Decision”), dismissing his application to appeal out of time against the decision of the Director of Immigration (“the Director”) dated 15 May 2015 rejecting his claim for non-refoulement protection.

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 arrived in Hong Kong on 9 March 2015 and was refused permission to land.  He then lodged a non-refoulement claim on the same day on the basis that if refouled, he would be harmed or killed by the Pakistani Army stationed at the India-Pakistan border, the Chamrail border, which was 5 km away from his home.  Details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 15 May 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[2], BOR3 risk^[3] and persecution risk^[4].

6.  By a Notice of Further Decision dated 23 December 2016 (“the Director’s 2^nd Decision”), the Director rejected the applicant’s non‑refoulement claim on the basis of BOR2 risk[5].

7.  On 2 June 2015, the applicant filed his Notice of Appeal against the Director’s 1^st Decision to the Board[6]. He was one day late in lodging his appeal.  However, his Notice of Appeal was incomplete.  The Notice of Appeal was then corrected and was filed again on 9 June 2015, and by that time, the applicant was eight days late.

8.  The Board dismissed his application to appeal out of time.  The Board considered that there was no relevant documentary evidence in support of his reasons for delay.  The Board also considered that the applicant did not have genuine appealable grounds and his appeal was without substance.

The Leave Decision

9.  On 6 July 2018, the applicant filed a Form 86 with a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. He provided no ground of review in his Form 86.  In his supporting affirmation, he only stated that he could not go back to his country as it was unsafe.

10.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review for the following reasons:

“13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. … …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.’

15. I am aware of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held that notwithstanding of the applicant being late in his appeal,

‘20. … … it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.’

16. The Board had already taken the merits of his case into consideration and came to its conclusion that his case did not fall within the protection of any of the risks set out in paragraph 6 above.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The Board had considered the merits of his case before it made its Decision not to extend time to the applicant to file his Notice of appeal. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

19. I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

11.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Deputy Judge’s order 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.

12.  On 14 May 2021, the applicant filed a summons together with a supporting affirmation for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, he was over one month late with his intended appeal.  In both the EOT Summons and the supporting affirmation, he failed to give any reason for his delay and only stated he was not satisfied with the Leave Decision.

13.  By the EOT Decision, the Deputy Judge considered that the applicant was unable to show any reasonable prospect of success in his intended appeal.  Accordingly, his application for extension of time to appeal was dismissed.

The Present Application

14.  By a summons and supporting affirmation both filed on 5 October 2021, the applicant reapplied for extension of time to appeal.  In the said summons, he did not provide any ground of appeal, and only claimed he did not receive the judgment from the High Court without giving any specific particulars or evidence in support.

15.  Pursuant to the directions given by the Registrar of Civil Appeals on 5 October 2021, the applicant lodged his written submissions on 19 October 2021.  In his submissions, he only stated that his life would be under threat in India and repeated the alleged factual basis of his non‑refoulement claim.  It is noted that these are all general and bare assertions unsupported by specific particulars or evidence in support.  More importantly, the applicant did not identify any error in the Leave Decision.

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 over one month as substantial and that the applicant has failed to provide any cogent explanation for his delay.  Ignorance of the law on the part of the applicant is not a reasonable excuse for his substantial 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 decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge 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.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper ground of appeal or error committed by the Deputy Judge.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

20.  In any event, the applicant’s general and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  As repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: 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].

21.  For the above reasons, the intended appeal 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 dated 5 October 2021 dismissed.