RE GURPREET SINGH

CAMP 334/2021

[2022] HKCA 1511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 334 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1932 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 Lung (“the Judge”) dated 31 July 2020 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 Form 86 did not set out the decision and the decision maker that he sought to judicially review.  The Judge took the application as an intended judicial review against two decisions of the Torture Claims Appeal Board (“the Board”) dated 13 March 2016 and 16 August 2018, which related to the applicant’s appeals against two decisions of the Director of Immigration (“the Director”) rejecting his non-refoulement claim.  The Judge ordered that the Form 86 be amended accordingly.

5.  The applicant is a national of India aged 33.  He arrived in Hong Kong on 25 March 2014.  He was refused permission to land whereupon he raised a non-refoulement claim.  His claim is based on his fear of being harmed or killed by members of the Supreme Akali Party (“SAP”) arising out of conflicts during the 2004 election when the applicant canvassed for the Indian National Congress (“INC”), and also because of a land dispute he had with people associated with SAP.  The details of the applicant’s claim were set out in the Director’s first decision at [6] and the Board’s first decision at [7].  We will not repeat them.       

6.  By two decisions dated 30 October 2014 and 19 January 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], BOR 3 risk[2], persecution risk[3] grounds and the further decision covered also the BOR 2 risk[4] ground.

7.  The applicant’s appeal against the Director’s first decision to the Board was heard on 19 January and 11 February 2015. By its decision dated 13 March 2015, the Board dismissed the appeal.  The Board rejected the applicant’s factual assertions as implausible.  It found no reliable evidence to support his concern that he would become the focus of SAP members or the subject of any adverse attention from the enemies he claimed.  The Board found no real risk of harm or persecution if he were to be refouled.  It further held that internal relocation was reasonably viable, which would reduce or negate any harm that he might face.  The Board concluded that he is not entitled to non-refoulement protection on the torture risk, BOR 3 risk and persecution risk grounds.

8.  In respect of the Director’s further decision dated 19 January 2017, the applicant sought to appeal against it by way of a notice of appeal which reached the Board on 13 September 2017.  Under section 37ZS(1) of the Immigration Ordinance, a non-refoulement claimant may appeal against the Director’s rejection of his claim within 14 days after notice of the decision is given to him.  The applicant’s notice of appeal was late by over seven months. 

9.  Pursuant to section 37ZT(2) of the Immigration Ordinance, the Board was required to determine as a preliminary point and without hearing whether to allow the late filing of the notice of appeal.  Under section 37ZT(3) of the Ordinance that was in force in 2017[5], the Board may allow late filing of the notice of appeal if it is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal.

10.  By its decision dated 16 August 2018, the Board refused to allow the late filing of the notice of appeal.  The Board found the delay to be serious and significant.  After evaluating all the circumstances of the case in accordance with the statutory provisions and the legal principles, the Board was satisfied that the late filing of the notice of appeal could justly be rejected. 

11.  The applicant filed his Form 86 and a supporting affirmation on 14 September 2018.  He did not provide any grounds for seeking relief.  He only stated in the affirmation that his problem has not been solved and his life is still in danger.    

12.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 31 July 2020[6], the Judge refused the application.  The Judge pointed out that in deciding whether to allow late filing of the notice of appeal, the Board had to consider the merits of the case and to take into account the relevant circumstances.  The Judge held that, despite there being no express reference in its second decision, the Board must have considered the facts and the applicant’s case as it had to assess the Director’s further decision.   The Judge found no evidence that the Board had erred in the finding of facts and the application of the law, and concluded that the intended judicial review did not have reasonable prospect of success. 

13.  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 14 September 2020[7].

14.  By a summons filed on 30 June 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 the papers.  By his decision handed down on 29 July 2021[8], he dismissed the application. 

15.  On 11 August 2021, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

16.  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. 

17.  The applicant was late by more than nine months when he filed the 30 June 2021 summons.  This is very serious delay.  Both in the application before the Judge and in this application, the applicant stated that he did not receive the Court’s decision in time, but did not elaborate on it.  The Court record shows that the applicant had on 22 January 2020 written to the Court providing an updated address at 27 Yen Chow Street, Sham Shui Po.  Probably due to an oversight, the Form CALL-1 was not mailed to this address, but was sent to an address at 166 On Ning Road, Yuen Long, which was the address stated in the Form 86.  The Form CALL-1 was therefore not properly delivered to the applicant.  Unfortunately, the Judge did not notice this when he refused the applicant’s application for extension of time to appeal.  In the circumstances, we are of the view that the applicant’s delay is excusable.            

18.  We turn next to consider the merits of the intended appeal.  In the present application, the applicant only asked in the summons that the time for appeal be extended but did not provide any ground in support of his intended appeal.  In the written submission, the applicant claimed that his political enemy killed his mother and he did not get any help from the police or his society.  He also said that because he was the next target, he came to Hong Kong to save his life.   

19.  Before considering the matters put forward by the applicant in this application, we consider it is necessary to analyse and evaluate the applicant’s intended judicial review, which is not apparent from the Judge’s decision.  The Judge had treated the intended judicial review to be against both decisions of the Board.  In respect of the first decision given on 13 March 2015, by the applicant was seriously out of time when he filed the Form 86 on 14 September 2018, being late by more than three years.  No reason for the delay was given and no grounds for seeking relief had been advanced by the applicant.  In these circumstances, the Court of First Instance has no proper basis to extend the time to judicially review the Board’s first decision.  Leave to apply for judicial review against the Board’s first decision must be refused. 

20.  With regard to the Board’s second decision dated 16 August 2018, it was a refusal to allow the late filing of the notice of appeal relating to the Director’s further decision.  Under section 37ZT(2) of the Immigration Ordinance, the Board is required to make a preliminary decision without a hearing, and in so doing may only take account of: (a) the statement of reasons stated in the application for the filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and (b) any other relevant matters of fact within the knowledge of the Board.  Section 37ZT(3) further provides that the Board may allow the late filing if it is satisfied that by reason of special circumstance, it would be unjust not to allow the late filing.

21.  In deciding whether to allow late filing of notice of appeal, the Board must evaluate all the circumstances of the case that it knows of, including the merits of the intended appeal against the Director’s decision, even if the delay is serious and significant for which no good reason is given: Re Khan Kamal Ahmed [2019] HKCA 377, [16] to [20]; and Re Qasim Ali [2019] HKCA 430, [23] to [26]. 

22.  As the Judge observed, the Board’s second decision did not discuss the merits of the applicant’s intended appeal against the Director’s further decision.  However, the Board had taken note of the English Court of Appeal’s decision in Denton & Ors v TH White Ltd & Anor [2014] EWCA Civ 906, and stated at [15] that:

“The important point made in Denton was that if there was a serious or significant breach and no good reason for the breach, it does not mean that the application for relief will automatically fail. The Board must then to [sic] move on to evaluate all the circumstances of the case, so as to enable the court to deal fairly and justly with the application to extend time.”

After finding that the delay of over seven months was both serious and significant and that the applicant had been served with the Director’s further decision, the Board further went on to hold at [21] and [22] as follows:

“21. The Board has evaluated all the circumstances of this application in accordance with the applicable legal provisions, especially section 37ZV(3) of the Ordinance, bearing in mind the principles stated in HCAL 9/2016, Begum[9] and Denton.

22. In all the circumstances, the Board is satisfied that the late filing of this Petitioner’s Notice of Appeal can justly be rejected.”  

23.  It would therefore appear to us that the Board was aware of the need to consider all the circumstances of the case, even though it was of the view that the delay was serious and significant and without good reason.  Although it was not expressly stated, the Board would have taken into account its first decision in which it had comprehensively evaluated the applicant’s evidence, and held that they did not support his claim that he was targeted by his enemies and he was at risk of being harmed if refouled.  We are accordingly satisfied that there is no error in law, irrationality or procedural irregularity in the Board’s second decision.     

24.  We have also considered the matters put forward by the applicant in the summons and written submission (see [18] above).  They do not engage with the Board’s reasons for the second decision, and do not amount to arguable grounds of appeal against the Judge’s decision. 

25.  For the above reasons, we agree that the intended judicial review has no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

26.  As the applicant’s intended appeal against the Judge’s dismissal of the application for 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 11 August 2021.