RE SUKHDEEP SINGH

CAMP 146/2020

[2021] HKCA 793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 146 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1124 OF 2017)

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J U D G M E N T

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

Introduction

1.  On 12 October 2018, Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 5 June 2015 and 3 November 2017 (“the Decision”).  In its dated 5 June 2015, the Board upheld the decision of the Director of Immigration (“the Director”) dated 29 September 2014 rejecting the applicant’s non-refoulement claim.  On 3 November 2017, the Board rejected the applicant’s late filing of the notice of appeal against the further decision of the Director dated 13 February 2017.

2.  The applicant lodged a summons on 16 July 2020 seeking an extension of time to appeal against the Decision.  On 14 August 2020, the Judge refused to grant leave for the applicant to appeal out of time against the Decision (“the Leave Decision”).

3.  By a summons dated 27 August 2020, the applicant now renews his leave application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 5 November 2020, the applicant lodged his written submission on 23 November 2020. 

4.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The Applicant is a national of India.  He attempted to enter Hong Kong on 27 July 2014 but was refused.  On 1 August 2014, he re-attempted to enter Hong Kong and was refused again.  On the same day, he raised his non-refoulement claim by way of written representation on the basis that if he were to return to India, he would be harmed or killed by Sukhchain Singh (“SS”), who was a member of the Congress Party and had good relationship with the police, over a land dispute.

6.  By the Notice of Decision dated 29 September 2014, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 3 risk[1], the torture risk[2] and the persecution risk[3].  

7.  By the Notice of Further Decision dated 13 February 2017, the Board rejected the applicant’s claim on the BOR 2 risk[4].

8.  The applicant appealed the Director’s decision dated 29 September 2014 to the Board. The Board, after reviewing all the documents and the issues raised, found there was no dispute in facts and in law that required an oral hearing. The Board accepted all the evidence adduced by the applicant and there was no issue of credibility to decide. However, having considered the applicant’s case, for the reasons and analysis stated in [28] to [47] of the decision, it was not satisfied that the complained acts or conducts amount to torture. From the evidence produced by the applicant, the purpose of the harm afflicted to him was a dispute of land distribution between his father and SS and a fight between the applicant and SS’s men which was private and personal in nature and the alleged harm done did not amount to torture. There was no evidence of state involvement or acquiescence and internal relocation is a viable option. For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds.

9.  By another decision made on 3 November 2017, the Board rejected the late filing of notice of appeal/petition of non-refoulement claim against the Notice of Further Decision dated 13 February 2017 in respect of his claim on the BOR 2 risk on the grounds that the applicant had substantially delayed the matter for 154 days and the Board was not satisfied that he had provided any good reason for the delay nor if there was any special circumstance to allow the late filing of the notice of appeal.

The Judge’s decision

10.  On 21 December 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decisions.  The applicant did not request for an oral hearing and provided no grounds of review.

11.  The Judge considered the application on paper.  On 12 October 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [10] – [11] for her refusal to grant leave:

“10. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  I have considered the papers, grounds and submissions carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.”

12.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 26 October 2018).  By the summons filed on 16 July 2020, he sought an extension of time for him to appeal against the Decision.  In his supporting affirmation, he explained that he did not receive the Decision or Order dated 12 October 2018 and he was only notified of the decision of this Court by the Immigration Department on 13 July 2020, which would have been some 21 months after both he and the Immigration Department were notified of the decision.

13.  By the Leave Decision of 14 August 2020, the application for an extension of time to appeal against the Decision was dismissed.  The Judge noted from the court file that the applicant’s address was Castle Peak Bay Immigration Centre (“CIC”) and the applicant’s address was not updated after his release.  The Decision was therefore sent to the CIC address.  It was subsequently returned undelivered by the Post Office.  The Judge was astonished that the Immigration Department simply returned the official court correspondence when a detainee had been released.   On the other hand, no further action was taken by the applicant to proceed with his appeal and the Judge took the view that it was the applicant’s duty to inform the court of his updated address.  Although the applicant explained that he had attended the High Court in 2018 and informed the court of his new address, he was unable to produce any documentary proof to the court.  The Judge concluded that as the applicant has been in Hong Kong since 2014 and has been interacting with various government agencies since that date, his explanation as to why he did not come to know of the Decision until July 2020 was not acceptable.   

14.  The Judge went on to say that even if the Court accepted the applicant’s explanation, his case was devoid of merit as he did not either in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error on the Decision, or why it might be argued that the Decision was unfair or unreasonable.  As such, the Judge found no prospect of success in the applicant’s intended appeal and therefore refused his application for an extension of time to appeal, and dismissed his summons.

The Renew Application

15.  By the summons dated 27 August 2020, the applicant renewed the matter before us.  He did not provide any draft or proposed grounds of appeal save for saying that he wanted to challenge the Leave Decision.  In his supporting affirmation, he reiterated his reason for his delay in taking out the summons for an extension of time to appeal against the Decision as advanced before the Judge.  He further complained about the lack of language assistance and he did not understand the Decision completely.  Lastly, he said he did not know that he needed to provide grounds for his intended appeal.

16.  In his written submissions, he advanced the following complaints:

(1)  There was a lack of language assistance and the Decision was not read back nor explained to him so that he could not provide proper grounds for his intended appeal.

(2)  There were no clear instructions for him as to the requirement of written submissions.

(3)  There were no directions for providing draft grounds of appeal and it was procedurally unfair to dismiss his case for not including any grounds of appeal.

(4)  The Judge failed to take into account his unique circumstances as a non-refoulement claimant that he is not familiar with the Hong Kong authorities and his limited language capacity in understanding the Decision.  All these amount to Wednesbury unreasonableness.

(5)  There is legal error as the court should ensure the process is fair and the fact that there is no other avenue for a non-refoulement claimant to seek an appeal against a decision on credibility is procedurally unfair.

(6)  Given his vulnerability has not been acknowledged and accepted, his case was not determined fairly.

The Relevant Legal Principles

17.  Whilst it is technically possible to appeal against a lower court’s decision refusing an extension of time for appealing, it is more appropriate to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8].  Accordingly, we shall treat the applicant’s summons as if it were a renewed application for leave to appeal out of time against the Decision rather than the Leave Decision made by the Judge.

18.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

19.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

20.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance 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 not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can 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.

(3)  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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

21.  We take the view that the applicant’s delay of some 21 months is substantial and inexcusable.  We agree with the Judge that the applicant did not provide any good reason to explain such a substantial delay.  Even if we give the benefit of doubt to the applicant that he had attended the court to update his address, his intended appeal would be rejected for lack of merit for the reasons explained below.

22.  Here, the Board did not take any issue on his credibility and accepted the facts of the applicant’s case.   His case was rejected by the Board on the ground that land dispute was private in nature and the alleged harm inflicted on him did not attain the minimum level of severity that would amount to torture.   It is open for the Board to reach its findings and conclusions and we see no valid public law grounds to intervene.

23.  Regarding the applicant’s complaint of lack of language assistance, it is trite that the high standard of fairness would not entail an interpretation service being made available throughout the process.  It is further noted that all the court documents in relation to the judicial review application and this appeal were written in English, indicating either that the applicant is familiar with the English language or that he has access to such language assistance as needed. 

24.  We are satisfied that the Judge had reviewed the Board’s decision carefully and we endorse the Judge’s findings that there is no prospect of success in the applicant’s intended application for judicial review.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 27 August 2020 is dismissed accordingly.

[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.