RE SINGH GURWINDER AND OTHERS

CAMP 158/2022, [2024] HKCA 458

On appeal from [2021] HKCFI 2462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 158 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2013 of 2018)

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JUDGMENT

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Hon Chu VP giving the Judgment of the Court:

A.  Introduction

1.  This is a renewed application taken out by the 2^nd applicant for leave to appeal out of time against the decision dated 24 August 2021[1] of Deputy High Court Judge Bruno Chan (“the Judge”), refusing to extend the time for the applicants to apply for judicial review and dismissing their application for leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing their appeal against the decision of the Director of Immigration (“the Director”) which rejected their claims for non-refoulement protection.

2.  The 2nd applicant did not respond to the court’s letter of 19 August 2022 inviting her to clarify whether her application was made on behalf of herself only or also on behalf of the 2^nd and 3^rd applicants. However, we note she stated in her summons filed on 17 May 2022 that the application was made on the part of the “applicants”.  We will therefore proceed on the basis that this application is made by the 2nd applicant for herself and also on behalf of the 2^nd and 3^rd applicants.

3.  The 2^nd applicant had filed a supporting affirmation to support the application.  Despite the directions of the Registrar of Civil Appeals, no written submissions were lodged by the applicants.

4.  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 summons and the affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

B.  Background

5.  The applicants are Indian nationals. The 1^st and 2^nd applicants are husband and wife.  The 3^rd applicant is their elder son, born on 4 August 2007. They have a younger son named Namanjot Singh (“the younger son”), who was born on 20 December 2009 and is now residing in India.  The three applicants entered Hong Kong as visitors on 11 March 2016 and were given permission to remain until 26 March 2016.  They overstayed and surrendered to the Immigration Department on 29 March 2016.  On 3 May 2016, they jointly applied for non-refoulement protection.

6.  The applicants’ claims, which were put forward by the 1^st applicant, are based on fear of being harmed or killed by the 1^st applicant’s uncle Paramjit and his two sons over a land dispute in Village Hansali in India.  The details of their claims are set out in the Director’s decision at [5] and [6] and the Board’s decision at [1] and [2].

7.  In gist, the applicants claim that disputes arose between the 1^st applicant and Paramjit in late 2013 over the sharing of the family farmland because Paramjit’s demand to have a greater share of the more expensive land was refused by the 1^st applicant who insisted on equal sharing between his father and Paramjit.  Despite efforts to resolve the conflict by the village elders and relatives, Paramjit was angered by the sale of the disputed land to an outsider.  Between 2014 and 2016, Paramjit and his two sons caused harassment and made threats of harm against the 1^st applicant and his family.  The 1^st applicant was injured in an incident in 2015 while his wife and children managed to escape from harm.  Owing to Paramjit’s connection with a legislative member, the police refused to take action on their report.  Fearing for their safety, the family moved to Kolkata and made arrangement to depart for Hong Kong.  However, when they were at the Delhi Airport on 9 March 2016, the 1^st applicant’s mother forgot to bring the younger son’s passport to the airport.  Consequently, the 1^st applicant had to leave the younger son to be cared by his mother and sister, while he departed India with the 2^nd and 3^rd applicants.  The 1^st applicant claimed that Paramjit did not know the location of his younger son.  He, however, also contended that they would be in danger if they were to return to India because Paramjit and his men would be able to hunt them down.  

C.  The Director’s decision

8.  The applicants’ claim was jointly assessed by the Director, as the 2^nd and 3^rd applicants’ claim was based on the 1^st applicant’s claim. By a decision dated 27 January 2017, the Director rejected the applicants’ claim having regard to torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5] grounds.

D.  The Board’s decision

9.  The applicants’ appeal to the Board was heard on 1 May 2018, during which the 1^st and 2^nd applicants gave evidence and answered questions put to them by the Board.  By its decision dated 8 May 2018, the Board dismissed the appeal. 

10.  Primarily, the Board accepted there had been a land dispute involving Paramjit and he had made threats against the applicants. However, the Board found there was no genuine risk for the applicants’ safety upon their return to India, having regard to the fact that the younger son, who was left behind by the 1^st and 2^nd applicants, has been under the care of the 1^st applicant’s sister and they live within short distance from  Paramjit, and the 1^st applicant has not made any and/or further arrangements for him to join them in Hong Kong[6].  The Board also did not accept that the 1^st and 2^nd applicants and their children would be under genuine threats of harm or death in the future, given that the land had been sold and the dispute over it would have come to an end[7].  The Board concluded that the applicants had not been able to show that they were entitled to non-refoulement protection under any of the applicable grounds[8]. 

E.  The Judge’s decision

11.  By a Form 86 filed on 24 September 2018, the applicants applied for leave to judicially review the Board’s Decision.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. The applicants’ Form 86 was about six weeks late.  The applicants did not provide any ground for seeking relief or any explanation for the delay, apart from stating in the supporting affirmation that they were not satisfied with the Board’s decision and they would not be safe in India.

12.  The applicants did not request an oral hearing. The Judge dealt with the application on paper.  By a Form CALL-1 dated 24 August 2021, the Judge refused to extend the time for applying for judicial review and dismissed the application.  In summary, the Judge considered it was a serious and substantial delay.  He found the intended challenge against the Board’s decision devoid of merits as the Board had given thorough analysis and reasoning for rejecting their claim at [37] to [46] of its decision.  He also did not find any error of law or irrationality or procedural unfairness in either of the decision of the Director or the Board.  He concluded that he applicants’ intended judicial review had no prospect of success. In view of the absence of good reason for the serious delay, he refused to extend time and dismissed the application for leave.

13.  The Judge dealt specifically with the case of the 3^rd applicant, who is a minor, and gave his reasons for rejecting his application at [17] to [19] as follows:

“17. I am of course mindful of the fact that A3 is a minor now aged 14 and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the board due to lack of legal representation in the appeal before the Board, when the proper approach of which have recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 which held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

18. In the present case, as noted above, the claim of A3 was premised fundamentally on his father’s claim of risk of harm from his father’s uncle arising from a family dispute over some farmland which has since been sold and on the clear finding of the Board of no genuine risk for their safety upon their return to their home village where A3 was born and raised and received his education up to the age of 8 before he came to Hong Kong with his parents where he also received primary education as found by the Director. As such I am unable to see any other potential non-refoulement basis which may be specific to A3 or to his personal circumstances that may not have been properly advanced to the Board in his appeal.

19.  n 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 Applicants’ claim, nor any merits in their intended judicial review, I therefore treat the absence of legal representation for A3 in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.”

F.   Application for extension of time

14.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, an 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 applicants to appeal the Judge’s order expired on 7 September 2021.

15.  By a summons and an affirmation filed on 5 October 2021, the 2^nd applicant applied for herself and on behalf of the applicants for an extension of time to appeal the Judge’s decision, on the basis that they had moved as the 2^nd applicant had been detained in prison and they did not know they had to inform the court of the change of address.  The Judge heard the application on 13 April 2022, and by his decision handed down on 4 May 2022[9] refused the application.

16.  On 17 May 2022, the 2^nd applicant filed the present summons to make a renewed application for leave to appeal out of time against the Judge’s decision.  The Board and the Director informed the Court by letters respectively dated 30 May 2022 and 30 June 2022 that they adopt a neutral stance in the present application.

17.  On 15 August 2022, the Director of Legal Aid refused the legal aid applications made by the 1^st applicant and the 2^nd applicant for herself and on behalf of the 3^rd applicant.

G.  Discussion

18.  In considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.   

19.  The applicants were four weeks late when they filed the 5 October 2021 summons, which is not insignificant in the context of the 14-day statutory time-limit.  Like the Judge, we are not satisfied that the applicants have satisfactorily explained the delay.  Firstly, the applicants are under a duty to inform the court of any change to their address.  Secondly, the court record shows that the Form CALL-1 and the sealed order were sent to the applicants’ last reported address and had not been returned through undelivered post.  

20.  We next turn to consider the merits of the intended appeal, which is the most important consideration.  The relevant 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].  An appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.

21.  In the present application, no specific ground in support of the intended appeal was put forward in the summons or in the affirmation. There is no particular or elaboration for the complaint that the Judge’s decision was reached unfairly. Further, as the applicants did not request for an oral hearing, the Judge is entitled to determine the application on the papers and not to hold an oral hearing.  The applicants have also not indicated what were the matters that they did not have an opportunity to put forward to the Judge for consideration.

22.  Moreover, assessment of risks of harm is a matter for the Director and the Board, who are the primary decision makers. The Court may only disturb their finding if it can be shown that there are errors in law, irrationality or procedural irregularity or unfairness.  As mentioned above, the Board despite accepting the basic facts underlying their claim, was not satisfied that there was a genuine risk of harm to the applicants upon their return to India. Both before the Judge and in the present application, the applicants have not pointed to any error, irregularity or unfairness in the process before the Director or in the appeal before the Board.  There was no proper basis on which the court can interfere with the Board’s rejection of the applicants’ appeal.  

23.  In the circumstances, we agree with the Judge that the 1^st and 2^nd applicants’ intended judicial review has no reasonable prospect of success, and the time for them to apply for judicial review of the Board’s decision should not be extended. 

24.  As to the case of the 3^rd applicant who is a minor, we have examined the Board’s decision with regard to this Court’s decisions in Fabio Arlyn Timogan [2020] HKCA 971 at [34] and Re Jasvir Singh [2021] HKCA 53 at [31] to [33].  In the present case, the 3^rd applicant’s claim is primarily premised on the 1^st applicant’s claim.  In its decision, the Board had considered the evidence of the 1^st and 2^nd applicants both separately and together, particularly the circumstances and their explanations for leaving the younger son behind to live in close proximity to the uncle they feared, as well as the risks of harm faced by the children in India.  For reasons given in the decision[10], the Board did not accept there was genuine risk of harm to the 3^rd applicant. 

25.  It is apparent from its decision that the Board was keenly aware of the need to assess the risk of harm faced by the 3^rd applicant if he was to return to India, and had effectively and sufficiently considered his case having regard to how the applicants’ claims were advanced and the evidence available before it.  We do not see any proper basis to disturb the Board’s findings.  We also do not see any material that may give rise to a concern that there may be non-refoulement grounds relating specifically to the 3^rd applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on his behalf.  In the premises, the 3^rd applicant’s intended judicial review also does not have any reasonable prospect of success, and his intended appeal against the Judge’s decision has no merits.  

26.  Accordingly, we will treat the non-compliance with Order 80 rule 2 of the Rules of the High Court[11] and the 3^rd applicant’s lack of legal representation as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.

27.  As all the applicants’ intended appeal against the Judge’s decision has no merits, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 17 May 2022.