RE KABAL SINGH

CAMP 292/2021

[2021] HKCA 1464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 292 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2766 of 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”) dated 28 April 2021 refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and lodged a written submission in support of his application.  

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

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 22 November 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 26 March 2018 rejecting his non-refoulement claim.

5.  The applicant is an Indian national aged 49.  He entered Hong Kong on 10 August 2014 and was given permission to remain as a visitor for 2 days.  He overstayed and surrendered to the Immigration Department on 2 September 2014.  He later raised a non-refoulement claim based on fear of (i) being harmed or killed by his creditor because of his failure to repay his loan; and (ii) being arrested by the Indian police in connection with a fight during which he stabbed someone with a sword.  The details of the applicant’s claim were set out in the Director’s decision at [8] and the Board’s decision at [11] to [44] as well as summarised by the Judge in [4] to [7] of the Form CALL-1.  We will not repeat them.     

6.  By his decision dated 26 March 2018, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 8 June 2018.  By its decision dated 22 November 2018, the Board dismissed the appeal.  The Board considered there were significant differences and omissions in his oral evidence as compared to his case in the non-refoulement claim form, which reflected poorly on his credibility and the reliability of his evidence.  The Board did not accept the applicant had told the truth in relation to critical aspects of his case.  The Board rejected his case about being pursued for his failure to repay a loan and for stabbing someone.  The Board concluded that the applicant failed to establish he faces a real risk of harm, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

8.  On 5 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  He put forward a variety of grounds which the Judge summarised as revolving around complaints about (1) the Board’s finding of facts; (2) procedural unfairness; (3) lack of language assistance; and (4) the Board’s failure to research into the country of origin information (“COI”).

9.  The Judge heard the application at an oral hearing.  By a Form CALL-1 dated 28 April 2021[5], the Judge refused to give leave to apply for judicial review and gave his reasons at [15] to [31].  In brief, the Judge found: (1) the grounds and complaints are bare assertions with no factual particulars as to, for example, in what way was the Board’s decision unreasonable or irrational, what was the duty that the Board had breached and in what way the duty was breached; (2) the Board did not rely on the COI for its decision and the discussions on state protection and internal relocation were not necessary for its decision; (3) the complaint about inadequate research into COI is a non-issue given the Board’s rejection of the factual basis of the applicant’s claim; (4) the authorities have established that a non-refoulement claimant does not have an absolute right to free legal assistance throughout all stages of the proceedings, and in all the circumstances of this case there is nothing amiss from the non-availability of legal representation or interpretation in the process before the Board; and (5) the Board had correctly set out the law and key legal principles relating to the applicable grounds and had observed a very high standard of fairness, and it was on such basis that the Board found there was no factual basis to support the applicant’s claim.  The Judge concluded the intended judicial review has no realistic prospect of success and refused the application.         

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 12 May 2021.

11.  By a summons filed on 17 May 2021 together with a supporting affirmation, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 27 May 2021[6] refused the application. 

12.  Under Order 59 rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 28 July 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  The present application is late by about six weeks.

13.  In deciding whether to extend time for appealing against the Judge’s decision refusing him leave to apply for judicial review, the court has to consider: (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.  When the applicant filed the summons on 17 May 2021, he was late by five days, which is not a substantial delay.  The Judge had considered the delay to be excusable, which we will not interfere although the reasons for the delay stated in the summons and affirmation in the present application are at variance with the explanation given to the Judge.  We would focus on the merits of his intended appeal.      

15.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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’s decision, 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.

17.  In the present application, the applicant has not put forward any grounds in support of his intended appeal in either the summons or the supporting affirmation.

18.  In the written submission, there are extensive quotes from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.  References are also made to the Wednesbury unreasonableness principle and section 37ZT of the Immigration Ordinance, Cap. 115 that relates to late filing of notice of appeal to the Board.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim.  It further complains that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility.

19.  In our view, the arguments put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  It has not been shown how the legal propositions quoted in the written submission relate to the applicant’s case.  For example, the reference to section 37ZT of the Immigration Ordinance is completely misplaced because we are not concerned with late filing of notice of appeal with the Board.  As to the complaint about the Board’s assessment of the applicant’s credibility, it is only a general assertion with no supporting particulars.   

20.  We have in any event examined the Board’s decision.  Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities in the Board’s decision.  In the circumstances, the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

21.  As the applicant’s intended appeal against the Judge’s refusal to give leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 28 July 2021.