RE JASPREET SINGH

CAMP 408/2022, [2023] HKCA 1130

On Appeal From [2022] HKCFI 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 408 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 40 OF 2019)

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J U D G M E N T

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

1.  On 8 April 2022, DHCJ Bruno Chan (“the Judge”)  refused to grant leave to the applicant for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4)  of the Rules of the High Court (Cap. 4A)  (“RHC”), 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.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 25 April 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 20 September 2022. 

3.  On 5 October 2022, the applicant filed his summons in CAMP 408/2022 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 5 October 2022, the applicant lodged his written submissions on 19 October 2022.

5.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of India.  He arrived in Hong Kong on 13 January 2013 as a visitor.  He overstayed and was arrested by police on 27 February 2013.  He was then referred to the Immigration Department for investigation and on 6 March 2014, he raised a non-refoulement claim alleging that if refouled, he would be harmed or killed by two local villagers namely SS and KS due to their dispute with his father over his father’s farmland in his home village.  The factual background of this case was succinctly summarised by the Judge at [2] – [4] of the JR Decision ([2022] HKCFI 1008).

7.  By a Notice of Decision dated 17 November 2016, the Director of Immigration (“the Director”)  decided against the applicant’s claims.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  The applicant (represented by a duty lawyer)  attended an oral hearing on 15 November 2018.  By its decision dated 4 January 2019, the Board dismissed the applicant’s appeal.  For the reasons set out at [49] – [80], the Board found that the applicant’s evidence was vague, inconsistent and confusing.  It did not accept that there was a land dispute between his father and KS and SS, nor threats and assault allegedly arising therefrom.  The applicant’s claimed fear of harm from KS and SS upon refoulement was contrasted with the evidence indicating that his parents have not faced any threats or harm from KS and SS even though it was the father’s land that SS and KS wanted.  In any event, internal relocation is a reasonable and viable option.  For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 7 January 2019, the applicant filed a Form No. 86 to apply for leave to judicially review both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge. 

(1)  The Director and the Board reached their decisions wrongly in assessing the applicant’s claim and they failed to recognize his right to life from extra-judicial killings.

(2)  The Board failed to give the applicant sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.

(3)  It was clearly a case of unfair attitude shown by the Director which in itself is enough to render his decision void.

(4)  The Director failed to consider the applicant’s assertions that corruption and incompetency of the administration in his home country is a very serious problem on which issue various human rights organizations have compiled reports, and it showed that the Director had failed to attain the high standard of fairness required by the Wednesbury test.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  After due consideration of the decision of the Board as well as the grounds of the applicant’s intended challenge, the Judge refused to grant leave to apply for judicial review with reasons set out in [10] - [13] of the JR Decision:

“10. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator had erred in their decisions, or how did they fail to apply high standard of fairness or to give the Applicant sufficient time and opportunity to provide his evidence for his claim or appeal in particular when he was legally represented by his lawyer from DLS in his appeal before the Board and when no such issue had ever been raised by him, or in what way would the right to life or extra-judicial killings be relevant to his claim which even based on his own case was a private land dispute between his family and some villagers in his home district without any official involvement or political element. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

12. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.   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.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 25 April 2022 for an extension of time to appeal.  That was dismissed by the Judge on 20 September 2022.  Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, 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 (although the lack of prejudice does not mean an extension will be granted). 

13.  As for (1), the applicant was late by 3 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was minimal.

14.  As for (2), it is not necessary for us to take a view on the reasons for the delay as it was short.  

15.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the JR Decision either in his summons or in his affirmation. 

16.  In the Summons and supporting affirmation filed with this Court, the applicant did not advance any proper or valid proposed grounds of appeal, or any particulars of any error in the JR Decision.  He claimed that he only had 30 minutes in the hearing with the adjudicator.  However, he was legally represented by the duty lawyer and presumably if the legal representative considered that there was insufficient time for him to present his case, this ground would have been raised before the Judge. 

17.  In the applicant’s written submissions, he reiterated the factual allegations of his claim.  He claimed that the Director and the Board made “many many mistakes” but he failed to specify any mistakes made by the Board which the Judge should have considered in the application for leave to apply for judicial review.  

18.  It is clear from the Board’s decision that the applicant’s evidence on the key matters of his case was vague, evasive, confusing and implausible and his case was rejected on the issue of credibility.  In any event, the Board found that there is reasonable state/police protection and the applicant may relocate to other parts of India to avoid the two local villagers.  These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds.  We see none in this case.

19.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and had rightly dismissed the leave application.  We find nothing amiss in the JR Decision. 

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 5 October 2022.