RE RANJIT SINGH

CAMP 500/2022, [2025] HKCA 114

On Appeal From [2022] HKCFI 2835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 500 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2233 OF 2018)

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J U D G M E N T

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

1.  By a summons filed on 28 November 2022, the applicant applied to this court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 28 October 2022.  By that order, the Deputy Judge refused the applicant’s application for extension of time to appeal ([2022] HKCFI 3148)  (“the EOT Decision”)  against his earlier order dated 19 September 2022 dismissing the applicant’s application for leave to apply for judicial review ([2022] HKCFI 2835)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 25 June 2018 (“the Board’s Decision”), dismissing the appeal against the decisions of the Director of Immigration (“the Director”)  dated 25 June 2015 and 3 March 2017 respectively, rejecting his claim for non-refoulement protection.

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of India.  He last arrived in Hong Kong on 19 March 2015, but was refused permission to land.  On the same date, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by members of the Shiromani Akali Dal Party (“SAD”), especially a member named Baljit Singh (“BS”), because he supported another political party, the Indian National Congress (“INC”), and refused to join SAD upon the invitation from BS.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By a Notice of Decision dated 25 June 2015, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR3 risk[1], persecution risk[2] and torture risk[3].

6.  By a Notice of Further Decision dated 3 March 2017, the Director rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4].

7.  The applicant then appealed against the two decisions of the Director to the Board.  On 15 March 2018, he attended a hearing before the Board and gave oral evidence.  On 25 June 2018, the Board dismissed his appeal and confirmed the two decisions of the Director.  The Board’s reasons for its decision were summarised by the Deputy Judge at [9] - [10] of the Leave Decision.

8.  In essence, the Board did not consider the applicant to be a reliable witness[5]. The Board did not consider the applicant’s claim that he would be killed by BS for not joining SAD to be plausible[6]. The Board found that the applicable assertion that he had suffered injuries from the assaults from the members associated with BS or SAD was not supported by any reliable evidence[7]. The Board found that there was no substantial ground to believe that the applicant would face a real risk of serious harm upon refoulement.  In any event, state protection and internal relocation would both be available to the applicant if he returned to India[8]. Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

9.  On 12 October 2018, the applicant filed a Form 86 with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  By then, he was over two weeks late in taking out his application.  No ground of review was given in the Form 86.  In his supporting affirmation, the applicant merely stated that his life would be in danger if he went back to India.  As the applicant did not request any oral hearing, the Deputy Judge considered his application on paper.

10.  By the Leave Decision, the Deputy Judge refused to extend time for the applicant to apply for judicial review and also refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [14] - [20] of the Leave Decision:

“14. …the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …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.’

18. The applicant has not raised any valid ground to challenge the Board’s Decision. His allegation has been rejected by the Board.

19. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

The EOT Decision

11.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

12.  On 5 October 2022, the applicant filed a summons (“the EOT Summons”)  with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was two days late with his intended appeal.  In the EOT Summons and his supporting affirmation, the applicant contended that he did not receive the order timely, and also that he needed help from his friend as he was uneducated and did not know about the legal procedure to appeal.

13.  By the EOT Decision, the Deputy Judge dismissed the applicant’s application for extension of time to appeal, holding that there was no valid reason from the applicant to show he had any realistic prospect of success in his intended appeal.

The Present Application

14.  By a summons and supporting affirmation both filed on 28 November 2022, the applicant applied for leave to appeal against the EOT Decision.  In his summons and supporting affirmation, the applicant claimed that he disagreed with the EOT Decision because the Deputy Judge did not scrutinise or consider the EOT Summons properly.

15.  Pursuant to the directions made by the Registrar of Civil Appeals on 28 November 2022, the applicant lodged his written submissions on 9 December 2022.  His arguments in those submissions could be summarised as these: (a)  the Deputy Judge failed to apply the principle of irrationality; (b)  the Deputy Judge failed to review the Board’s Decision in light of “high standard of fairness”; (c)  the Deputy Judge failed to apply the principle of procedural unfairness; (d)  the Deputy Judge failed to give greater care to the proof submitted by the applicant; (e)  the Deputy Judge did not analyse the applicant’s claim properly; (f)  the Board failed to give sufficient chance to the applicant to arrange relevant evidence; and (g)  the Board relied on outdated source of news.

Discussion

16.  Following the approach this court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

17.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

18.  Since a delay of two days in taking out his application for extension of time to appeal is not substantial, for present purposes, we will focus on the merits of his application.

19.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

20.  As a start, the applicant’s complaint in his summons has no substance.  Given the delay of two days, it is plainly right for the Deputy Judge to focus on the merits of the applicant’s case in determining his extension of time application before the Deputy Judge.

21.  The arguments raised in his written submissions are new and not raised in the Court below.  It is well established that this court will generally not entertain new arguments which are fact and evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; and Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, the applicant’s contentions in his summons and written submissions are all general and bare assertions without any specific particulars or evidence in support. They also do not constitute proper grounds of appeal and we refuse to entertain those arguments.  The intended appeal must fail on this basis alone.

22.  In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, country of origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly held by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

23.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 28 November 2022 is dismissed.