RE KABAL SINGH

HCAL 2766/2018

[2021] HKCFI 1458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2766 OF 2018

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons dated 17 May 2021 for extension of time to appeal my order dated 28 April 2021 refusing his application for leave to apply for judicial review.  He was only five days late.

2.  The Applicant’s non-refoulement claims are founded on his fear of being killed by an unknown passenger whom he stabbed in the course of a heated argument arising from a traffic accident in which his brother was fatally injured; and of being killed by his creditor for being unable to repay his debt.  The Board did not believe his evidence and dismissed his appeal against the decision of the Director of Immigration (the “Director”) in refusing his non-refoulement claims (the “Decision”).  His application for leave to apply for judicial review of the Decision of the Board was refused by this Court.   

The law

3.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  The application for leave to appeal is five days late.

4.  In Jagg Sing and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Length of the delay and reasons for delay

5.  The explanation for the delay given by the Applicant in his affirmation in support is that he “did not get that letter (ie the Form Call-1) on time”.  He said:

“2. The Order was made and served on me on 28^th day of April 2021 and I did not get that letter on time.

3. As I get the information about my case judgment on the 8^th day of May 2021 from my landlord. After I get the Judgment by following the court order I am preparing for the summon (sic) by the help of my friends.”

6.  The Applicant did not actually tell how it was that he received the Form Call-1 late.  Reading between the lines, I assume in his favour that his explanation is that landlord somehow for some reasons held up the document and gave it to him late.  That is not at all an unlikely scenario in a subdivided tenement.  The delay was short.  I accept it as an excuse.

Prospect of the intended appeal

7.  The grounds of appeal the Applicant put forward in his supporting affirmation is that he has “good grounds of appeal”.  He said in paragraphs 6 to 9 of his affirmation:

“6. However, I have since taken legal advice and, I understand that there is a good grounds of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review. Obviously, this was my own oversight brought on by the fact that I was acting in person at this stage of proceedings. Additionally, I was informed that the Director and the Adjudicator did not saw the grounds to reverse their decision. I would prefer to submit the order from the High Court along with the affirmation and Summons as Exhibit ‘A’”.

7. If I do not have any serious problems in India, then I do not have any other reason to leave India and my family back there and live alone in Hong Kong as an asylum seekers even after knowing that I have no future in Hong Kong but just a waste of my time as the acceptance rate for the asylum seekers of Hong Kong is below 1%. 

8. I am enough educated to make a simple and happy life in India by staying by the side of my family members but still I am staying in Hong Kong for years and keep applying to the different authorities for help by hoping that maybe someone gonna show some mercy on me and grant me as an asylum seekers so I can Seattle (sic) my life somewhere and think something for my future.  

9. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal put of me.  

10. Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my Appeal/petition.”

8.  The Applicant said he had taken legal advice and understood that there are good grounds of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review. But throughout the affirmation, he never disclosed what those grounds of appeal are and what the Board had failed to consider.  If indeed he had been legally advised that he had meritorious grounds of appeal and that those grounds have not been considered by the Board, he should have no difficulties particularizing them in his affirmation.  In the total absence of particulars, his so called “good grounds of appeal” are just empty assertions.

9.  The rest of his affirmation is just repetitive. The theme of his “good grounds of appeal” is that he would not have come to Hong Kong if his life is not under threat.  Provided that his feared and risk of harm falls within one of the applicable grounds under the Unified Screening Mechanism, he would be entitled to non-refoulement protection.  However, the Board did not believe his evidence.  The finding of the Board was that he could not even establish a factual case on which to launch his non-refoulement claims.  As was mentioned in paragraph 13 of the Form Call-1, the role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2]. For reasons as explained in paragraphs 14 to 32 of the Form Call-1, the Decision of the Board was utterly without fault and there is no justification for judicial review.

10.  The Applicant does not have any meritorious grounds of appeal. His intended appeal has no prospect of success.

Prejudice to the respondent

11.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  But the prejudice to the proposed respondent and to public administration if a challenge which has no chance of success is allowed to proceed is obvious to the court.  Though the delay is not excessive, it is nevertheless an abuse of the process of the court and the non-refoulement protection arrangement.  To allow a challenge which has no prospect of success to proceed would encourage other claimants to indulge in such abuse and drag their feet in their refoulement.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  To allow the challenge to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

12.  In summary, though the delay was not excessive the Applicant does not have a good ground of appeal.  The Decision of the Board was utterly without fault.  There was no procedural unfairness.  The Decision was not Wednesbury unreasonable or irrational.  The Applicant would suffer no prejudice if his application for extension of time is refused.   To allow the challenge to proceed would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration.  The Applicant only has himself to blame for the delay.

13.  For all these reasons, the application for extension of time is refused.