RE WARAS SINGH

CAMP 151/2024, [2026] HKCA 1192

On appeal from [2024] HKCFI 552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 151 OF 2024

(ON AN INTENDED APPEAL FROM HCAL 1554/2023)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ To (“the Judge”) dated 21 February 2024[1] (“the Leave Decision”) refusing to grant leave to the applicant to apply for judicial review[2]. The intended judicial review was against (i) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 8 November 2016 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 11 December 2015 rejecting the applicant’s non-refoulement claim (“the Director’s 2015 Decision”); and (ii) the Director’s decision dated 20 June 2023 dismissing the applicant’s request to make a subsequent claim for non-refoulement protection (“the Director’s 2023 Decision”).

2.  After his non-refoulement claim was dismissed by the Director by the Director’s 2015 Decision, the applicant appealed against the said decision to the Board.  Before the appeal was heard however, the applicant applied by a letter dated 24 October 2016 to withdraw his appeal.  The withdrawal was allowed by the Board, which led to the dismissal of the applicant’s appeal by the Board’s Decision.

3.  The applicant’s background, the basis of his claim, the Board’s reasons in reaching the Board’s Decision and the Director’s reasons in reaching the Director’s 2015 and 2023 Decisions have been set out by the Judge in the Leave Decision at [1]-[22], which will not be repeated. 

4.  After considering the documents filed by the applicant and the oral submission he made at the hearing of the leave application, the Judge (i) refused to extend time for the applicant to apply for leave regarding the Board’s Decision and/or the Director’s 2015 Decision; and (ii) refused leave for the applicant to apply for judicial review regarding the Director’s 2023 Decision for the reasons stated at [23]-[28] of the Leave Decision.  

5.  By a decision dated 26 July 2024[3] (“the EoT Decision”), DHCJ KW Lung refused to extend time for the applicant to appeal against the Leave Decision.

The present application for extension of time to appeal

6.  According to the court’s record, a copy of the Leave Decision and a sealed copy of the Judge’s order was sent by post to the applicant at his last known address on 21 February 2024, which was not returned undelivered.

7.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days from the date of the Leave Decision.

8.  Subsequently, the applicant made an application in the court below for an extension of time to appeal against the Leave Decision, which was dismissed by DHCJ KW Lung for the reasons stated in the EoT Decision.

9.  By a Summons filed on 9 August 2024, the applicant renewed his application for an extension of time to appeal before this court. 

10.  In his supporting affirmation, the applicant stated that he was at the material times detained at Castle Peak Bay Immigration Centre (“the CIC”). 

11.  In his written submissions lodged on 22 August 2024, the applicant stated inter alia that the Judge erred in failing to “appreciate the significance of [his] non‑refoulement claim”, that he was prejudiced by the lack of language and legal assistance in the proceedings, and that the Board did not determine his case fairly.

12.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.  

Discussion

13.  The court’s letter enclosing a copy of the Leave Decision was sent to the last known address of the applicant, which was not returned undelivered.  The applicant is therefore deemed to have had knowledge of the contents of the Leave Decision within the period which he was permitted to lodge an appeal.  In any event, it was incumbent upon the applicant to notify the court of a change of address or a change of circumstances, if any, as soon as possible, and the consequences of failure to do so must lie with him.  The applicant has also wholly failed to explain how and when he had come to learn of the contents of the Leave Decision.

14.  We are therefore of the view that the applicant has failed to proffer any or any reasonable explanation for the delay in lodging his intended appeal. 

15.  Even if we were to accept that the applicant was at the material times detained at the CIC and thus was unable to lodge his Notice of Appeal in time, for the following reasons, we do not consider there to be any merits in the intended appeal.  

16.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal 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 were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could 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.

17.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant are bare assertions unsupported by particulars or evidence.

18.  As regards the Director’s 2015 Decision (and also the Board’s Decision, which allowed the applicant’s withdrawal of his appeal against the Director’s 2015 Decision), the Director found that the applicant’s fear of harm at the hands of a man named Suba by reason of his conversion to Christianity was unsubstantiated on the evidence.  In any event, the Director found that there were adequate state protection and suitable options of internal relocation available to the applicant in order to minimise the risk of harm from Suba and his men, if any.  These were factual findings open to the Director on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [10]-[19]. 

19.  The applicant has failed to demonstrate how the Director and/or the Board had acted unlawfully or procedurally unfairly in reaching the Director’s 2015 Decision and/or the Board’s Decision, or how such Decisions could be said to be Wednesbury unreasonable.  The Judge therefore cannot be said to have erred in refusing to extend time for the applicant to apply for leave to apply for judicial review as against the Director’s 2015 Decision and/or the Board’s Decision.

20.  As regards the intended judicial review against the Director’s 2023 Decision by which the applicant’s request to make a subsequent claim for non-refoulement protection was refused, the Judge was of the view that the Director had observed a very high standard of fairness by advising the applicant on the law and procedure regarding his request, and that the applicant had ignored the Director’s requests for further supporting evidence pertaining to a change in circumstances since the lodging of his previous non-refoulement claim.  We agree.

21.  Further, the Judge concluded that he could detect no error of law in the 2023 Decision and that the finding of facts, including the finding that (absent any new evidence) the applicant’s intended subsequent claim based on the previous evidence had no realistic prospect of success, was exclusively within the province of the Director.  We agree with the Judge’s conclusion in this respect and we see no basis to interfere. 

22.  For completeness, we are unpersuaded by the applicant’s complaint of prejudice apparently caused by his lack of legal representation. As this court has repeatedly held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

23.  We are equally unpersuaded by the applicant’s complaint as to the apparent lack of language assistance, as he was clearly able (whether by himself or with the assistance of others) to lodge comprehensible English documents and submissions with the court and in the processing of his claim below.

24.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The Summons filed on 9 August 2024 is accordingly dismissed.