RE AJAYPAL SINGH

CAMP 398/2022, [2023] HKCA 1128

On Appeal From [2022] HKCFI 1610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 398 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 22 OF 2022)

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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 1 June 2022, DHCJ To (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“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 4 July 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 22 September 2022.

3.  On 30 September 2022, the applicant filed his summons in CAMP 398/2022 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 September 2022, the applicant should lodge his written submissions in support of the Summons on or before 14 October 2022.  However, he failed to do so.  He only lodged his written submissions on 11 April 2023 without any explanation for his substantial delay. 

5.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.  In the absence of any good reason for the substantial delay, the written submissions will not be considered.

6.  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

7.  The applicant is a national of India. He last arrived at Hong Kong on 29 October 2015 and was permitted to remain as a visitor until 22 November 2015.  He overstayed and surrendered to the Immigration Department on 26 November 2015.  On 23 June 2016, he lodged his non-refoulement claim alleging that if refouled, he will be harmed or even killed by his paternal uncle and his associates because of a dispute over family land. The factual background of this case was succinctly summarised by the Judge at [5] – [12] of the JR Decision ([2022] HKCFI 1610).

8.  By a Notice of Decision dated 12 September 2018, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

9.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  and attended an oral hearing on 28 October 2019.  By its decision dated 15 December 2021, the Board dismissed the appeal.  For the reasons set out at [111] to [148], the Board, on its assessment of the totality of the evidence, had serious concerns about the credibility and reliability of the applicant’s account of events, in particular, it did not believe that (i)  gangsters had assaulted him in India on the directions of his uncle; (ii)  his uncle threatened him personally; (iii)  he reported his alleged ill-treatment by his uncle’s associates to the police; (iv)  he fled India on two occasions because he considered his life was in danger [135].  He had made a trip to Hong Kong in July 2015 but returned to India without making any non-refoulement claim.  His evidence concerning his interaction with his Hong Kong lawyer and his failure to make prompt and full disclose of materials facts about his whereabouts following his return to India were inconsistent and contradictory which had further damaged his credibility.  In any event, relevant country of origin information (“COI”)  suggested that there is reasonable state protection and internal relocation is a 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

10.  On 7 January 2022, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  The grounds on which relief was sought were set out in an attached document but they were general assertions only, and challenged the weight given by the Board to various aspects of his case.  

The JR Decision

11.  A hearing was scheduled for the applicant on 21 April 2022 but he failed to attend without any explanation.  The Judge proceeded to dispose of the application on paper. After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [16] - [17] of the JR Decision:

“16. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh.

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board found the Applicant not credible.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

Application for extension of time to appeal the JR Decision

12.  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 4 July 2022 for an extension of time to appeal.  That was dismissed by the Judge on 22 September 2022.  Hence, the Summons to this court.

Discussion

13.  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). 

14.  As for (1), the applicant was late by 19 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 not insignificant.

15.  As for (2), the reasons for the delay, the applicant explained in his supporting affirmation that he had misplaced the JR Decision and the court order, and that he was not able to appeal without the same.  To provide an opportunity to the applicant to present a proper case for extension of time, the court directed him by letter dated 27 July 2022 to file a statement within 14 days stating the date and circumstances when the court documents were received or brought to his attention and the grounds of his intended appeal.  However, he failed to respond.  In the absence of any details or evidence to corroborate his explanation for delay, we do not find a valid reason for the delay.

16.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  Despite the court’s specific request, the applicant did not provide any valid grounds of appeal to challenge the Board’s decision nor did he pinpoint any error in JR Decision.  The submissions he sought to file in this court would not be considered by reason of his unexplained delay.    

17.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility as his evidence was vague and inconsistent and improbable, and thus it was found that the applicant had failed to prove the factual basis of his claim for non-refoulement protection on all applicable grounds.  In any event, relevant COI suggested that there is reasonable state protection and internal relocation is a viable option.  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.

18.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

19.  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 30 September 2022.