RE RASHPAL SINGH

CAMP 124/2022, [2023] HKCA 855

On Appeal From [2021] HKCFI 3270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 124 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 297 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 4 November 2021, DHCJ Suffiad (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”) [2021] HKCFI 3270. Under Order 53 r.3(4) Rules of the High Court (“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 16 December 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ To on 18 March 2022 [2022] HKCFI 699. 

3.  On 21 April 2022, the applicant filed a summons in CAMP 124/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal against the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 21 April 2022, the applicant should lodge his written submissions in support of the Summons on or before 5 May 2022.  However, he failed to do so.  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.

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 came to Hong Kong on 24 May 2015 as a visitor and was allowed to stay until 7 June 2015.  He did not leave and overstayed in Hong Kong.  On 23 March 2016, he raised his non-refoulement claim alleging that if refouled, he would be harmed or killed by people from the Shiromani Akali Dal (“SAD”) which is affiliated with the Bharatiya Janata Party (“BJP”) party, as he is a supporter (he had initially claimed to be an actual member) of a rival political party, namely the Indian National Congress.  He claimed he had been attacked by people and had been threatened by people from SAD.  The factual background of this case was succinctly summarised by the Judge at [3] – [10] of the JR Decision ([2021] HKCFI 3270).

7.  By a Notice of Decision dated 9 April 2018, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], BOR 3 risk[2], 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”).  An oral hearing was held on 10 December 2018, during which the applicant gave evidence before the Board.  His appeal was dismissed in its decision dated 25 January 2019 (“the Board’s Decision”).  For the reasons set out at [27] – [40], the Board found that the applicant’s evidence was vague, evasive and unreliable.  There were inconsistencies in the alleged incidents of attacks by the people from SAD and his allegations of injuries were suspicious. The Board found no evidence to substantiate the suggestion that SAD was affiliated with BJP and that the applicant will be subjected to torture by the people from SAD if refouled.  There was also no evidence to suggest that the alleged attacks were done with the consent or acquiescence of the Indian police or government.  In any event, internal relocation is a viable option.  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.

Application for leave to start judicial review

9.  On 1 February 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Director’s (rather than the Board’s) decision.  In his supporting affirmation of the same date, he did not provide any ground for his intended challenge.

The JR Decision

10.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  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 has been pursued; the Director’s decision has been superseded by the Board’s decision and therefore, it is not open to the applicant to challenge the Director’s decision by way of judicial review.  The Judge thus focused on discussing the Board’s decision.  After due consideration of all available materials, the Judge refused leave for judicial review for reasons set out in [24] - [28] of the JR Decision:

“24. In the present case, the Board did not take issue with the personal and family background of the Applicant accepting them as true. The Board however disagreed with the Applicant on the assessment of risk rejecting the allegations of the Applicant in respect of the facts giving rise to such risks. The Board also found that police protection and internal relocation to be available to the Applicant based on the COI.

25. It has been said time and again that the risk of harm and availability of state protection as well as internal relocation are primarily the province of the Board and the Director. It is not for this Court to usurp those functions of the Board. This Court will not interfere with the decisions of the Board unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

26. The present complaint raised by the Applicant in his affirmation in support of his Form 86, both dated 1 February 2019, contains nothing to indicate any error of law, procedural unfairness or irrationality of the Board.  The Court can see no reasonably arguable basis to challenge the findings of the Board.

27. The decisions of the Director and that of the Board are plainly reasonable.

28. Having considered both the decision of the Director and the decision of the Board, the court cannot see any error of law, irrational findings or procedural unfairness. Nor can the court see any failure on their part to apply a high standard of fairness.”

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 16 December 2021 for an extension of time to appeal.  That was dismissed by DHCJ To on 18 March 2022.  Hence, the Summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, 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 4 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.

14.  As for (2), the reasons for the delay, the applicant explained that when he received the JR Decision, the 14 days appeal period had expired.  However he failed to provide any explanation for the delay in receiving the JR Decision.  No good reason for his delay has been shown. 

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant did not provide any proper or valid proposed grounds of appeal, nor has he pinpointed any error of the JR Decision.

16.  It is clear from the Board’s Decision that the applicant’s claim was rejected by reason of his lack of credibility over the alleged attacks.  There is no evidence to suggest any state involvement in the alleged attacks and in any event internal relocation is a reasonable option.  The Board was entitled on the evidence to reach its findings and conclusion.

17.  We are 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.   

18.  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 21 April 2022.