SARUP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 401/2022

[2023] HKCA 366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 401 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 757 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 19 May 2022, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 25 August 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as the applicant was unable to show that he has any reasonable prospect of success in his intended appeal[2].

3.  On 3 October 2022, the applicant filed the present summons with the Court of Appeal essentially to challenge the refusal of time extension by the judge. In light of the decision Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 19 May 2022.

4.  The applicant is a national of India. He is 42 years old. He entered Hong Kong as a visitor but overstayed. He surrendered to the Immigration Department on 21 April 2015. Subsequently, the applicant lodged a non-refoulement claim on 26 June 2015 and 18 August 2015 on the basis that he would be harmed or killed by his uncle and cousins.

5.  By a Notice of Decision dated 13 March 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5], and persecution risk[6].

6.  The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 29 November 2018. The applicant informed the Board he was unwell but confirmed he was able to proceed. However, the applicant refused to answer any questions from the Board. The Board therefore informed the applicant there was insufficient evidence before the Board and it would be unable to resolve various difficulties with the information available. The applicant, nevertheless, continued to refuse to answer any questions. In light of the applicant’s un-cooperation, the Board basically was not able to ascertain the veracity of his claims, nor could the Board clarify its concerns regarding the applicant’s risk of harm. Therefore, the Board rejected the applicant’s appeal and affirmed the Director’s decision on 21 February 2019.

The judge’s decision

7.  On 19 March 2019, the applicant applied for leave to apply for judicial review against the Board’s decision. There were no grounds provided for seeking relief in his Form 86. As for his supporting affirmation, he repeated the background of his case and simply annexed the decisions of the Director and Board. As the applicant did not request an oral hearing, the judge dealt with the application on paper.

8.  The judge held there was no ground in support of the applicant’s application. It was held that the adverse inference drawn against the applicant due to his un-cooperation with the Board is well settled in the Court of Appeal case of TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 at §25. Furthermore, there was no error of law or procedural unfairness in the decision of the Board in their consideration and assessment of the applicant’s claim as found by the judge. In conclusion, the judge found there is no reasonably arguable basis in the applicant’s intended challenge and dismissed the leave application for judicial review on 19 May 2022.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his summons or his supporting affirmation and merely stated that he did not agree with the decisions of the Court and that he failed to appeal as he did not get the letter of the Court on time. These were basically the same arguments submitted before the judge below. As for his written submissions, the applicant repeated the basis of his claim for non-refoulement without providing any further supporting evidence.

Analysis and disposition

10.  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.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 19 May 2022. The applicant took out a summons in the court below on 25 July 2022. He was late for over 7 weeks. This is substantial and no explanation was provided by the applicant.

12.  As the applicant’s delay is inexcusable, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13.  In assessing the merits of the intended appeal, the court 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.

14.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  The applicant has not provided any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave against him to bring judicial review. The Board is entitled not to accept the applicant’s case advanced in support of his claim, having warned him there was insufficient evidence and it required clarification on the alleged risk of harm. The applicant refused to co-operate and answer any questions of the Board. In the circumstances, there is no prospect of success in his intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 19 May 2022 and dismiss the summons filed on 3 October 2022.