RE SUKHDEV SINGH

CAMP 190/2021

[2021] HKCA 1474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 190 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 963 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 September 2020 refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) refusing to allow him to re-open his non-refoulement claim.

5.  The applicant is a national of India aged 45.  He arrived in Hong Kong on 12 November 2006 and was given permission to remain as a visitor.  He had since 27 December 2006 overstayed and was arrested by the police on 7 February 2007.  On 10 February 2007, he raised a torture claim based on fear of being harmed or killed by a man named Surjit Singh from the Akali Dal Party over a political dispute.  The details of the applicant’s claim were set out in the Director’s first decision dated 22 October 2013 and summarised by the Judge at [1] to [6] of the Form CALL-1.  We will not repeat them. 

6.  By his decision dated 22 October 2013, the Director rejected the torture claim with adverse finding on the credibility of his claim.  Subsequently, the applicant made a non-refoulement claim.  On 6 June 2016, the applicant notified the Director in writing of his decision to withdraw his claim.  The Director accepted the claim as being withdrawn under section 37ZE(1) of the Immigration Ordinance.  On 27 March 2017, the applicant applied in writing to the Director to re-open his non-refoulement claim for the reason that the present government in India was a life threat to him and his family had advised him not to return to India.   

7.  By his decision dated 18 April 2017, the Director refused to re-open the applicant’s claim on the ground that he failed to satisfy the requirements of section 37ZE(2) of the Immigration Ordinance.

8.  The applicant appealed the Director’s decision to the Board on 24 April 2017.  He gave the following reasons in his notice of appeal (paragraph 2):

“I want to say that last year in 5/2016, on Tuesday I had cancelled my appeal to go back to India as I wanted to go back to India at that time. But it took very long for me to go back and before I could go back, my enemies came to know about it and my father told me not to go back as there was danger to me. So I cancelled my departure for India and went to Skyline Tower to re-open my case again. This is true that there is danger to my life. Therefore, please accept my application. I will be grateful to you.”

9.  The Board dealt with the appeal on the papers.  By its decision dated 19 July 2017, the Board dismissed the appeal.  The Board held that the applicant failed to make out a case for re-opening his claim under section 37ZE(2) of the Immigration Ordinance.  In brief, the Board foundthere was nothing to substantiate his allegation that the present government in India is a life threat for him in that there was no evidence of a change of government nor was there any explanation as to why the present government in India is really a life threat for him.  The Board also noted that he gave a different reason in his notice of appeal, which is in any event a bare allegation not substantiated by facts.

10.  Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  In the applicant’s case, the three-months’ period for bringing a judicial review ended on 19 October 2017.

11.  It was not until 29 May 2018 that the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The application was more than five months late.    

12.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 7 September 2020[1], the Judge refused to extend time for the applicant to apply for judicial review and dismissed his application.  The Judge gave his reasons in [16] to [21] as follows:

“16. In the Applicant’s case, a delay of more than 7 months must be regarded as very substantial or excessive, for which he did not provide any reason. As such and as the record shows that the Board’s decision was sent to his last reported address on the same date and has never been returned through undelivered mail, I do not find any good reason for his serious delay.

17. As for the merit of his intended application, as noted above the Applicant has not put forward any proper or valid ground for his intended application, and in the absence of any error of law or procedural unfairness in his process before the Board or its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis or merit for his intended challenge.

18. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where 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 the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessments by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19. In the Applicant’s case, on the basis of the reasons put forward by him for his request to re-open his claim as noted above, both the Director and the Board were entitled to find, and rightly so in my judgment, that he had failed to provide any evidence, let alone sufficient one, that since the withdrawal there had been a change of circumstances that could not reasonably have been foreseen by him when he gave notice of the withdrawal, or of any special circumstances which would be unjust not to re-open his claim under section 37ZE(2) of the Ordinance.

20. In the premises and having considered 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.

21. For these reasons 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 for his serious delay, I refuse to extend time and accordingly dismiss his application.”      

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 21 September 2020.

14.  By a summons filed on 28 December 2020 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge heard the application at an oral hearing on 4 May 2021 and by his decision handed down on 13 May 2021[2] refused the application.  

15.  On 25 May 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

16.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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. 

17.  The applicant was late by more than three months, which is a substantial delay.  In his application for extension of time before the Judge, the applicant initially stated that he received the decision late but at the oral hearing further added that there had been delay in his legal aid application.  In the written submission in support of the present application, the applicant said that he did not get the letter in time and that had he received the decision in time, he would have appealed to the Court of Appeal.  For the reasons given by the Judge at [4] of the decision dated 13 May 2021, we agree that the applicant had not satisfactorily explained his delay.      

18.  As for the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

19.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.  In the present application, the applicant’s supporting affirmation set out the following grounds of application:

(1)  The decision of 13 May 2021 was irrational, and there were many “unacceptable and unexplainable grounds” to refuse his summons to extend the time for appealing.

(2)  He is a genuine non-refoulement claimant who faces dangerous problems and harassment and torture in India, and has to flee his country to save his life.

(3)  If he had not run away he would certainly have been killed by his enemies who are still looking for him and his problems are increasingly life-threatening.

21.  The written submission made the following arguments:

(1)  The Judge was wrong in law in not applying the principle of irrationality to the Director’s and the Board’s decisions. 

(2)  The high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim rendering him liable to be removed. 

(3)  The Judge was wrong in law in not applying the principle of procedural unfairness to the decisions of the Director and the Board, which required them to give reasons for their decisions.

(4)  The Board failed to give sufficient chance to the applicant to arrange relevant evidence to support his non-refoulement claim and his appeal.

(5)  The Board had relied on news the source of which is not officially recognised or is simply hearsay.

(6)  The applicant will face hardship if he were to return to his home country.

22.  In our view, the grounds and arguments put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  Critically, they are not directed at the reasons given by the Judge and are mostly misplaced. 

23.  The applicant withdrew his claim in June 2016 and sought to re-open it after nine months in March 2017.  To succeed in his application to re-open the claim, the applicant has to satisfy the requirements of section 37ZE(2) of the Immigration Ordinance, namely, he has to provide sufficient evidence in writing to satisfy an immigration officer that (a) since the withdrawal, there has been a change of circumstances that (i) he could not reasonably have foreseen when he withdrew the claim, and (ii) when taken together with the material previously submitted for the claim, it could increase the prospect of success of the claim; or that (b) by reason of special circumstances, it would be unjust not to re-open the claim. 

24.  The Board had found the reasons given by the applicant for re-opening his claim failed to satisfy the requirements of section 37ZE(2).  The applicant’s assertions in the affirmation that he is at risks of harm and danger in India are hardly sufficient to show that the Board erred in its decision.  The complaints about the Judge’s decision refusing to extend time for him to appeal are bare, general statements and, in any event, are misplaced as he has now made a renewed application to this Court.

25.  Although his written submission referred to irrationality, high standard of fairness and procedural unfairness, they are bare general statements with no details or particulars. There is also no basis for the complaint that the Board failed to give reasons for its decision, or that it did not afford the applicant an opportunity to arrange evidence to support his claim and appeal.  The complaint about reliance on unofficial news is entirely irrelevant.

26.  We have in any event examined the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  We agree with the Judge that the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing to extend the time to apply for judicial review.

27.  As the applicant’s intended appeal against the Judge’s refusal to extend time and the dismissal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 25 May 2021. 

[1] [2020] HKCFI 2192.

[2] [2021] HKCFI 1298.