RE BHUPINDER SINGH

CAMP 227/2020

[2021] HKCA 1026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 227 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 794 OF 2017)

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J U D G M E N T

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

Introduction

1.  By the decision dated 19 March 2019 (“the Decision”), Deputy High Court Judge Josiah Lam (“Judge Lam”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 29 September 2017.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 11 January 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant lodged a summons on 4 June 2019 seeking an extension of time to appeal against the Decision.  The application was heard before Deputy High Court Judge Bruno Chan (“Judge Chan”)  on 28 June 2019 and by his decision dated 21 August 2019 (“the Leave Decision”), Judge Chan, having considered the length of delay, reason for the delay and the underlying merits of his application, dismissed the applicant’s summons on the basis that it would not be in the interest of justice to grant an extension of time.

3.  On 1 December 2020, the applicant took out a summons which we shall treat a renew application for time extension to this Court (see paragraph 17 below).  Pursuant to the directions of the Registrar of Civil Appeals given on 19 January 2021, the applicant lodged his written submissions on 2 February 2021. 

4.  Under Order 59, rule 14A(1)  of the Rules of the High Court (Cap. 4A), this Court may determine an application for an extension of time to appeal without an oral hearing.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The Applicant is a national of India who arrived in Hong Kong on 7 October 2013 as a visitor and was permitted to stay until 21 October 2013.  He overstayed and was arrested by the police on 1 November 2013. He was then referred to the Immigration Department for investigation.  On 3 November 2013, he raised a non-refoulement claim on the basis that if he returned to India, he would be harmed or even killed by his girlfriend Lakhvir Kaur’s (“LK”)  family as they objected her relationship with the applicant.  The factual background of this case was succinctly set out by Judge Lam at [1] - [9] of the Form CALL-1.[1]

6.  By the Notice of Decision dated 11 January 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

7.  The applicant appealed the Director’s decision to the Board and the appeal was heard on 13 September 2017.  By its decision dated 29 September 2017, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons and analysis stated in [42] to [69] of its decision, the Bound found the applicant’s evidence unconvincing and implausible. The Board rejected his claim that he has a well-founded fear of being persecuted for reasons of his relationship with LK, finding that his story was a fabrication for the purpose of his non-refoulement claim.  For the aforesaid reason, his appeal was dismissed on all applicable grounds.

The Judge’s decision

8.  On 20 October 2017, the applicant filed his Form 86 for leave to apply for a judicial review of both the Director’s and the Board’s decisions. As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is not susceptible to judicial review once an appeal to the Board had been and dealt with. Judge Lam had rightly proceeded to only deal with the application in relation to the Board’s decision.

9.  The applicant set out the grounds of his intended challenge against the Board’s decision in “Enclosure 2” attached to his Form 86.  In gist, he said that at the time of preparing his appeal to the Board, he was detained in the Immigration Detention Centre in Tuen Mun.  He complained that the Adjudicator failed to make sufficient enquiry and failed to consider that he had limited option to adduce evidence and that he was deprived of sufficient chance to arrange relevant evidence due to his detention.

10.  The applicant was absent at the hearing fixed for 10 August 2018 and Judge Lam proceeded to consider his application on paper.  By his decision dated 19 March 2019, Judge Lam refused to grant leave to the applicant to apply for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, Judge Lam gave the following reasons at [26] – [31] for his refusal to grant leave:

“Discussion

26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

27. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”[7]

28. The Applicant complained the Adjudicator failed to consider he had limited or no option to adduce proof. He said he had been detained at the Immigration Detention Centre in Tuen Mun. He also complained the Adjudicator failed to give him sufficient chance to arrange relevant evidence.

29. According to paragraph 10 of the Director’s decision dated 11 January 2017, the Applicant was arrested by the police for using an identity card relating to another person’ and illegal employment. He was sentenced to 15 months ‘imprisonment on 26 October 2016. I accept the Applicant was in custody when the Adjudicator interviewed him on 13 September 2017. However, there was no evidence that he was deprived of any chance to present his case as much as he could. There was no evidence he was prevented to arrange his evidence or proof. There was no evidence he complained to the Adjudicator that he had been prejudiced to any extent. There was also no evidence he had applied for adjournment before the Adjudicator for cause.

30. The Applicant complained the Adjudicator failed to make sufficient enquiry. However, he failed to give specifics.

31.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavor with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. She considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

11.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 2 April 2019).  By the summons filed on 4 June 2019, he sought an extension of time for him to appeal against the Decision. 

12.  The summons was heard before Judge Chan and by the Leave Decision, Judge Chan refused to grant an extension of time for the applicant to appeal the Decision.  The delay of 2 months in pursuing his intended appeal was considered significant.  The applicant explained in his supporting affirmation that he never received the Decision and only found out about it during his report to the Immigration Department on 3 June 2019.  The applicant did not provide any further details or particulars and he failed to appear at the hearing of his summons without any explanation.  Judge Chan was not satisfied that there was a good reason for the applicant’s delay. 

13.  More importantly, the applicant failed to provide any draft or proposed ground of appeal save for saying in his affirmation that he had a good ground of appeal without any elaboration or particulars of what that may be, and in the absence of any error in the Decision being clearly and properly identified, Judge Chan did not find any prospect of success in the applicant’s intended appeal and thus refused the application for time extension, and dismissed the summons.

The renew application

14.  The applicant issued the present summons on 1 December 2020, which is more than 15 months after the handing down of the Leave Decision on 21 August 2019.  In his supporting affirmation filed on the same day, he advanced the following grounds:

1.  He did not agree with the Leave Decision which made him unhappy or irrational.

2.  There are unacceptable and unexplained grounds in refusing his application to extend time for his application for leave to apply for judicial review.

3.  He is a genuine non-refoulement claimant who faced danger, harassment and torture in India.  He was unable to find any place to stay safely in his country and therefore he fled abroad to save his life.

4.  If he did not run away, he would certainly be killed by his enemy.  His problem is getting worse and therefore he had no choice but to escape to Hong Kong.

15.  Regarding the reason for his late filing of the summons, he explained that he got sick and could not remember anything.  He had no idea about the decisions of his case as he had lost his memory and he had no idea what happened in his life.  After he got back his memory, he found information about his intended application for judicial review with the Immigration Department and his friend assisted him to proceed with his intended appeal.

16.  In his written submissions, he repeated the reason for his delay and his grounds of appeal as set out in his summons.  He further advanced the following grounds of appeal:

(1)  The decisions have the effect of finally disposing of his torture claim and making him liable to be refouled.  It entails a real and significant implication for his substantive right not to be subjected to torture.

(2)  Judge Lam was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director and the Board.

(3)  High standards of fairness are required in the determination of a torture claim but the judges reviewed the matter lightly.

17.  As pointed out by Lam VP in Farrukh Zaib v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & other [2020] HKCA 408 at [21], whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for extension of time before the Court of Appeal[8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal against the Decision instead of the Leave Decision out of time.

18.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  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 respondent if an extension of time were granted.

19.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

20.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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 judge, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1)  of the Rules of the High Court (Cap. 4A). 

Discussion

21.  The applicant was late for 2 months in taking out the summons for an extension of time to appeal the Decision and then late for about 15 months to renew his application before this Court after Judge Chan handed down the Leave Decision on 21 August 2019 refusing to grant an extension of time for his intended appeal against the Decision.

22.  We agree with Judge Chan that the 2-month delay was significant and the applicant failed to provide any good reason to explain his delay.  Moreover, the applicant’s substantial delay in taking out the present summons suggested that he is probably seeking to prolong his stay in Hong Kong and fails to proceed with his appeal diligently.

23.  In our judgment, his intended appeal is devoid of merit and his grounds of appeal as set out in the summons and the written submissions are general and bare assertions and did not pinpoint any error of law or raised any discernible grounds for this Court to reverse the Decision. 

24.  We have carefully reviewed the Board’s decision and it was open for the Board to reach an adverse finding on credibility on the applicant’s case and in our view, the Board’s decision is well based and justified.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 1 December 2020 is dismissed accordingly.