GURSEWAK SINGH v. DIRECTOR OF IMMIGRATION

CAMP 265/2021

[2022] HKCA 16

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 265 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 736 OF 2017)

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J U D G M E N T

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

1.  On 28 June 2018, Deputy High Court Judge Josiah Lam refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1] (“the Judge’s Decision”).

2.  On 31 March 2021, the applicant filed a summons for leave to appeal out of time against the Judge’s Decision. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal against the judge’s order refusing leave within 14 days after such refusal. Thus, the time for filing his appeal ended on 12 July 2018. He was more than two years out of time.

3.  On 14 July 2021, Deputy High Court Judge K W Lung refused to grant extension of time to appeal against the Judge’s Decision on the basis that the applicant failed to show a reasonable prospect of success in his intended appeal (“DHCJ Lung’s EOT Decision”)[2].

4.  On 21 July 2021, the applicant filed the present application with the Court of Appeal seeking to renew his application to appeal the Judge’s Decision out of time.

5.  The applicant is a national of India. He entered Hong Kong as a visitor on 8 December 2014 but overstayed since 23 December 2014. On 11 February 2015, he was arrested by the Hong Kong police. On 13 February 2015, he lodged a non-refoulement claim. His claim was made on the basis that, upon refoulement, he would be harmed or killed by his uncle Mahinder Singh (“Mahinder”) because of a land dispute.

6.  By a Notice of Decision dated 15 June 2017 (“the Director’s Decision”), the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4], persecution risk[5] and BOR 2 risk[6].

7.  The applicant appealed against the Director’s Decision to the Board. The Board conducted a hearing on 5 September 2017. Before the Board, the applicant further provided two affidavits which contained similar contents of his claim.

8.  Having considered all the evidence, the Board found that (1) the applicant provided different accounts as to the alleged first attack; (2) in the alleged second attack, Mahinder only used foul language to threaten the applicant; (3) for the alleged third attack, the applicant confirmed that Mahinder did not do anything harmful to him; (4) the applicant was free from any harm from Mahinder for two years and was able to stay in Moga City for six months without any incidents, and (5) the applicant only sought protection after he was arrested by the Hong Kong police. Such act was inconsistent with someone who genuinely wanted to seek protection. When assessing the individual grounds, the Board further found that there was no state involvement and that the dispute with Mahinder was entirely private. In any event, after reviewing the country of origin information, the Board concluded that state protection and internal relocation were both available to the applicant. Thus, by a decision dated 8 September 2017 (“the Board’s Decision”), the Board dismissed the applicant’s appeal.

The Judge’s Decision

9.  On 6 October 2017, the applicant applied for leave to bring a judicial review against the Director’s Decision and the Board’s Decision. He advanced several grounds of review which were summarized in §§32 to 33 of the Judge’s Decision. After reviewing the Board’s Decision and the Director’s Decision in light of the applicant’s grounds of review, the judge refused the applicant’s leave application.

10.  On 31 March 2021, the applicant took out a summons seeking to appeal the Judge’s Decision out of time. By DHCJ Lung’s EOT Decision, DHCJ Lung refused to extend time to the applicant as he failed to prove that his intended appeal had any prospect of success.

The renewed application to Court of Appeal

11.  On 21 July 2021, the applicant sought to renew his extension of time application before the Court of Appeal. In his summons, the applicant only asked this court to save his life and sought to challenge the Judge’s Decision. In his supporting affirmation filed on the same date, the applicant attached DHCJ Lung’s EOT Decision “in order to give the court a more complete picture about [his] case”.

12.  In the applicant’s written submissions of 21 July 2021, he listed four riders. Under rider (A), he repeated his personal background and his claim. He then provided a definition of asylum under rider (B). For rider (C), he set out his complaints that the Board failed to make sufficient inquiries and that he did not receive duty lawyer’s assistance. He also requested under rider (D) that the court should save his life as a human being. In addition, the applicant cited section 37ZO of the Immigration Ordinance, Cap 115. However, he did not elaborate on the relevance of such provision.

Analysis and disposition

13.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

14.  We consider the applicant’s delay of more than two years as very substantial and the applicant has not provided any cogent explanation for his delay. His explanation that he did not receive the Judge’s Decision remained a bare assertion without any evidential support. As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at §15; Re Ansar Muhammad [2018] HKCA 227 at §8; Re MA [2019] HKCA 1020 at §18.

15.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.

17.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  As set out above, the only arguments in support of his present application are those under rider (C) of his written submissions. But they are not grounds of appeal against the Judge’s Decision. Further, they are arguments that were advanced but rejected by the judge. The applicant failed to identify any errors with particulars as to why the judge was wrong in so holding.

19.  As for his complaints that he did not receive language and legal assistances from the duty lawyer service, they are misconceived as he was represented by the duty lawyer before the Director. There is simply no viable ground of appeal against the Judge’s Decision.

20.  For all the above reasons, we do not see any prospect of success in the applicant’s intended appeal. It will be futile to grant him an extension of time. We therefore dismiss the applicant’s summons of 21 July 2021.