RE GHARU MANPREET SINGH

CAMP 41/2018

[2018] HKCA 314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 41 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 627 of 2017)

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JUDGMENT

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

1.  By summons filed on 4 April 2018, the applicant seeks leave to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 16 March 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 9 June 2014 and 24 January 2017 rejecting his non-refoulement claim.  The applicant’s appeals against the Director’s decisions were respectively dismissed by the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) on 5 January 2015 and 8 September 2017.

2.  Both the Board and the Director have written to the court indicating that they adopt a neutral stance in this application.

3.  Having considered the papers and the applicant’s written submission, we are of the view that it is appropriate to determine the application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.

4.  The applicant is an Indian national.  On 10 March 2014, he flew from India to Hong Kong.  He was refused entry upon arrival at the Hong Kong Airport, whereupon he made a non-refoulement protection claim.

The applicant’s claim is based on his fear that if he were to return to India, he would be harmed or killed by supporters of the Shiromani Akali Dal Party (“SAD”) because he is a Sikh, which is an inferior caste in India, and also because he was a supporter (not a member) of Indian National Congress Party (“INC”) and had canvassing votes for INC during elections. 

5.  According to the applicant, in September 2011, five SAD people, three of whom were his fellow villagers, asked him and an INC member to join SAD.  When they refused, the SAC people threatened to kill the applicant before they left.  Some 15 days later, the three fellow villagers and one other SAD member again asked him to join SAD.  When he refused, he was assaulted with wooden sticks causing injuries to his elbows and knee.  The applicant received treatment from a doctor.  He went to the main police station in his area to make a report, but after being told on two occasions to wait for the return of the officer-in-charge, he did not go to the station again. 

6.  One evening in end of December 2011 when the applicant was making home visits for INC, he was slapped on the face by the three fellow villagers and a fourth man.  Since January 2012, whenever the applicant bumped into SAD members, he would be assaulted and threatened.  To avoid the constant threats and harassments, the applicant travelled to different locations in India and only returned home six months later.  In the initial two to three months, the applicant hid at home.  When he started to go out, he was again met with threats and abuse from SAD members.  To avoid them, the applicant went to live at his grandparents’ house in Bhawanigarh in January 2013.  In May 2013, the applicant returned home to canvass votes for INC in the local council election.  He encountered a lot of verbal threats and minor assaults from the three fellow villagers and other SAD members.  He did not report the incidents to police as he believed the police were biased in favour of SAD and would not take action. 

7.  To avoid further risk to his life, the applicant decided to leave India.  On 16 July 2013, the applicant arrived in Hong Kong.  He was refused entry and repatriated to Delhi on the same day.  The applicant went to live with his grandparents until mid-August 2013 when he returned home.  Around the end of August 2013, the applicant was verbally abused by three to four men whom he suspected were SAD people.  They also pressed his head in water several times.  In September 2013, they attempted to attack him with wooden sticks, but he managed to escape.  Then one evening in January or February 2014, when the applicant was riding a motorbike, a car bumped his bike from behind.  The passengers of the car attacked him using a wooden rod.  The applicant sustained injuries to various parts of his body and had to be treated by a doctor.  These incidents were not reported to police as he did not trust them.  In view of these attacks, the applicant left India again for Hong Kong on 10 March 2014.

8.  The Director assessed the applicant’s non-refoulement claim under all applicable grounds.  By his decision of 9 June 2014, the Director rejected the applicant’s claim, having considered torture risk[1], BOR 3 risk[2] and persecution risk[3].  The applicant appealed to the Board.  An oral hearing took place on 10 September 2014, during which the applicant elected to give evidence.  By a decision dated 5 January 2015, the Board dismissed the applicant’s appeal.  The Board was of the view that the applicant’s case was not credible, and that, even accepting what he said, his case did not come within the ambit of a torture claim, BOR 3 claim or persecution claim.   

9.  By letter dated 12 December 2016, the Director invited the applicant to submit additional facts in support of an assessment under BOR 2 risk[4]. The applicant wrote to the Director on 23 December 2016 reiterating that his life would be in danger as he had been given death threats, and when elections took place he would face the same problem again.  By a decision dated 24 January 2017, the Director determined that the applicant’s claim also failed on the BOR 2 risk ground.  The applicant’s appeal to the Board against the Director’s further decision was dismissed on 8 September 2017.

10.  The applicant filed his Form 86 on 15 September 2017 together with a supporting affirmation.  The applicant had not given any grounds for his application in either document.  He did not request an oral hearing, and his application was determined on paper.

11.  The Judge refused to give leave to apply for judicial review as she considered the intended judicial review was not reasonably arguable and had no realistic prospect of success.  In [9] to [12] of the CALL-1 Form, the Judge stated:

“9. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.”

“10. There were no grounds of review. As a result I took into consideration the Decisions of the Director and Adjudicator and considered whether there was any evidence of unlawfulness, unreasonableness or unfairness.”

“11. I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, both the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.”

12.  The 14-day period for the applicant to appeal against the Judge’s decision ended on 30 March 2018[5], but because it was a public holiday followed by the weekend and another public holiday, the last day for the applicant to file a notice of appeal fell on 3 April 2018[6].  On 4 April 2018, the applicant took out the present summons seeking leave to appeal out of time.

13.  In considering whether to extend time for appealing against 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 the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

14.  In this case, the applicant was late by one day, which is not inordinate.  The applicant explained in his affirmation filed in this application that he received the court order and the CALL-1 Form late because he had moved and he erroneously thought that by informing the Immigration Department of his new address the court would also be updated.  We are prepared to accept the explanation.

15.  We turn to assess the prospects of the intended appeal against the Judge’s decision, which is a crucial consideration in an application to extend time: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

16.  The applicant has not set out the ground of his intended appeal in the summons.  Both his supporting affirmation and written submission are directed at the reason for the delay in filing the notice of appeal. 

17.  In his written submission, the applicant stated that he was under the mistaken belief that an oral hearing would be held to hear his application for leave to apply for judicial review.  He further said that had he realised he had to request for an oral hearing, he would have made the request because he believed his case would be better explained in person as it was his personal experience.  As the Judge pointed out, judicial review does not operate as a rehearing of the applicant’s non-refoulement claim.  It is not an occasion for the applicant to explain his case for the claim.  He already had the opportunity to do so when interviewed by the Director and at the hearing before the Board.  The court will not usurp the Board’s (as well as the Director’s) role as the primary decision maker: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, and Re Masoom Parvez [2018] HKCA 163.  In an application for leave to apply for judicial review, the applicant has a duty to state the grounds for his intended judicial review and to demonstrate that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v. Winnie Cheung (2007) 10 HKCFAR 676.  Given that the applicant had not set out any ground for his intended judicial review, we do not accept the determination of his application for leave on paper has resulted in any prejudice or unfairness.     

18.  Further, notwithstanding that no ground was given for the application, the Judge had reviewed the decisions of the Board and the Director, and concluded there was no basis for a judicial review.  Having carefully considered the Judge’s decision and the papers filed by the applicant, we are in agreement with the Judge’s conclusion that the applicant’s intended judicial review is not reasonably arguable and has no realistic prospect of success. 

19.  As we are of the view that the intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time for appealing.  Accordingly, we refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.

20.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of High Court that the applicant may not request our determination to be reconsidered at an oral hearing.