RE AMRIK SINGH AND ANOTHER

CAMP 134/2020

[2021] HKCA 784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 134 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 838 of 2017)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 16 March 2021, this Court (Chu and Au JJA) handed down our judgment[1] refusing to give leave to the 1^st and 2^nd applicants to appeal out of time against the decision of Campbell-Moffat J given on 19 December 2018 refusing their and their son’s application for leave to apply for judicial review.    

2.  On 11 May 2021, the applicants filed a notice of motion and an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  They also put in a written submission on 24 May 2021 to support their application, pursuant to the directions given by the Registrar of Civil Appeals.

3.  Having considered the applicants’ notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicants’ application on the basis of the documents in the case.

4.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.  Generally, the court will only extend the time when satisfied that there is good cause for doing so.

5.  The applicants’ application is late by one month.  It is not insubstantial.  The applicants had given no explanation for their delay.  They merely requested in their affirmation that they be allowed to appeal even though they were out of time.  No good reason has been shown for the delay.    

6.  We turn next to consider the merits of the application.  The background to this case and the applicants’ claim have been set out in our judgment.  We will not repeat them.

7.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

8.  The notice of motion only stated that the applicants wished to be permitted to appeal to the Court of Final Appeal, but contained no proposed grounds of appeal.

9.  In their written submission, the applicants reiterated that the leaders in their society do not accept their inter-caste marriage, and they are regarded as having sinned and broken the social law.  They stated that their three children, who were born in Hong Kong, were regarded as illegitimate children and had no rights under their social norms.  It was said that it was not possible for them to return to India as all five of them risked being killed by the leaders of their society. 

10.  The matters stated in the applicants’ written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  They relate solely to the circumstances of the applicants and their family, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, as pointed out in [24] and [25] of our judgment, the applicants have not identified any error in the judge’s reasons for refusing their application for leave to bring judicial review, or advanced any substantial or proper ground for challenging the judge’s decision.  Their intended appeal therefore has no reasonable prospect of success and it would be futile to extend the time for appealing the judge’s decision.   

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the application for leave to appeal to the Court of Final Appeal is bound to fail.  In the circumstances, it is futile to extend the time for making the application.  Accordingly, we refuse to extend the time for applying for leave to appeal to the Court of Final Appeal and dismiss the notice of motion.  

CAMP 134/2020

[2021] HKCA 300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 134 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 838 OF 2017)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

Introduction

1.  On 19 December 2018, Campbell-Moffat J (“the Judge”) refused to grant leave to the applicants and their son (who is a minor) to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 20 October 2017 dismissing their appeal against the decisions of the Director of Immigration (“the Director”) dated 20 June 2016 and 11 July 2017 refusing their non-refoulement claims.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A, the applicants may appeal the Judge’s decision within 14 days which expired on 2 January 2019. 

3.  By a summons filed on 22 May 2020, the applicants sought an extension of time to appeal the Judge’s decision.  They were out of time by more than 16 months.  The Judge heard the application on 19 June 2020. At the conclusion of the hearing, the Judge refused to extend the time for appealing.

4.  The applicants filed a summons on 17 August 2020 to renew their application to appeal out of time before this Court.  Their son has not been included as an applicant in the summons.  Despite the directions given by the Registrar of Civil Appeals, the two applicants have not lodged any written submission.   

5.  Having considered the documents in the application, we consider it is appropriate to determine the application on the paper without a hearing, pursuant to Order 59, rule 14A(1) of the Rules of the High Court.

Background

6.  The applicants are nationals of India both aged 35.  They are husband and wife.  They arrived in Hong Kong on 29 October 2014 and were permitted to remain as visitors until 12 November 2014.  They overstayed and surrendered themselves to the Immigration Department on 25 November 2014.  They filed their non-refoulement claims on 5 February 2015.  On 10 August 2015, the 2^nd applicant gave birth to their son in Hong Kong.  A non-refoulement claim was made on the son’s behalf on 8 October 2015.

7.  The applicants were represented by the Duty Lawyer Service before the Director.  Their lawyer had by letter dated 20 January 2016 informed the Director that the applicants and their son would be making a joint application.  By letter dated 11 February 2016, the Director informed the applicants that decisions on their and their son’s applications would be based on the information provided in the 1^st applicant’s non-refoulement form and his screening interview.  Before the Board, they were not legally represented, and the 1^st applicant acted for the 2^nd applicant and their son.

8.  The 1^st applicant’s claim was based on fear of being harmed or killed by the family members of the 2^nd applicant because they disapprove of the 1^st and 2^nd applicants’ inter-caste marriage.  The factual background was set out in detail in the Director’s 1^st decision at [6] and summarised in [21] of the Board’s decision and in [4] of the Form CALL-1 dated 19 December 2018[1].

9.  In gist, the 1^st applicant is a Sikh from the Carpenter caste while the 2^nd applicant who is also a Sikh is from the Chhimbe caste.  The 2^nd applicant’s father is the village head and her brother is a member of the municipal committee of the village.  The 1^st applicant claims that they are affiliated with the Akali Dal Party which in turn is affiliated to the ruling party, Bharatiya Janata Party.  Despite warning from the 2^nd applicant’s brother, the applicants married secretly in September 2013 in a Sikh Temple.  In October 2014, the 2^nd applicant had to reveal their marriage when her parents wanted her to marry another man.  The 2^nd applicant’s brother and family were infuriated and threatened to kill the 1^st applicant.  The 1^st and 2^nd applicants left their village to hide in the Golden Temple in Amritsar.  The 2^nd applicant’s brother and his men tried to get hold of the 1^st applicant but he managed to escape.  On another occasion, they found him in the temple and attacked him with a knife causing an injury to his arm.  People in the temple intervened and he managed to run away.  Fearing for their safety, the 1^st and 2^nd applicants left India and came to Hong Kong.

The Director’s decisions and the Board’s decision

10.  By his decision dated 20 June 2016, the Director rejected the claims of the 1^st and 2^nd applicants and their son having regard to the torture risk[2], persecution risk[3] and BOR 3 risk[4] grounds.  They appealed to the Board.  By the time the Board heard the appeal on 9 October 2017, the Director had further assessed their claims under the BOR 2 risk[5] ground and by his decision dated 11 July 2017 decided against them. 

11.  At the oral hearing before the Board, the 1^st applicant on behalf of the 2^nd applicant and their son informed the Board that they had nothing to add.  By its decision dated 20 October 2017, the Board dismissed the appeal.  The Board concluded that the applicants and their son failed to make out a case that they needed non-refoulement protection because: (1) their case was a family dispute that did not involve the Indian government; (2) the 2^nd applicant’s brother assaulted the 1^st applicant in his personal capacity unrelated to his capacity as member of the village municipal committee; (3) the 1^st applicant did not sustain any severe injuries; and (4) the 1^st applicant had exaggerated the influence of the 2^nd applicant’s brother.  The Board further found that state protection is available and internal relocation is also feasible, which would lower or negate the risk of harm claimed by the 1^st applicant. 

The Judge’s decision

12.  On 3 November 2017, the applicants and their son filed a Form 86 together with an affirmation made by the 1^st applicant to seek leave to challenge the decisions of the Director and the Board by way of judicial review.  They did not request an oral hearing and the Judge processed their application on the papers without a hearing. 

13.  The grounds relied on by the applicants for seeking relief had been summarized by the Judge as follows[6]:

“I. The Adjudicator acted irrationally and/ or unreasonably, in that he:

a.   failed to consider the concept of state acquiescence and/or the extended form of state acquiescence;

b.   failed to place weight on relevant information;

c.   placed weight on irrelevant information, or incorrect or inaccurate facts;

d.   failed to consider a consistent system of human rights violations;

e.   failed to consider if state protection exists in Pakistan;

f.  ; failed to consider or place weight on relevant COI and cherry picked that which he chose to consider;

II. There was procedural impropriety in that the Adjudicator:

a.   made insufficient enquiry;

b.  failed to investigate COI.”

14.  By her decision contained in the Form CALL-1 dated 19 December 2018, the Judge refused to grant leave to all three of them to apply for judicial review.  She set out her reasons at [11] to [13] of the Judge’s Decision:

“11. There are no particulars provided for any of the applicants’ grounds. They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the applicants and a waste of judicial time. In several respects they are wholly irrelevant and bear no relation to the matters at hand. The applicants have a duty to state the grounds of their intended judicial review and why they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. It is incumbent upon the applicants to make good their grounds, which they have failed to do. Without more, the court is restricted to that which is self‑evident from the papers. All of the applicants’ grounds are without merit either for the reasons given above or because the issue does not arise in all the circumstances of this case.”

“12.  Despite the fact that the applicants did not submit any grounds of review, I have considered the papers and grounds 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.  This was a very simple claim without factual merit.  Despite the onus being upon the applicants, the Adjudicator engaged in a joint endeavour with the applicants and considered all relevant criteria; gave the applicants a reasonable opportunity to state their case and enquired into that case appropriately.  There is no criticism of that determination, which was open to the Adjudicator on the facts and eminently reasonable.  

13.  In my judgement, there is no reasonably arguable basis upon which the applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave.  I therefore refuse leave for judicial review.”

Application for extension of time

15.  On 22 May 2020, the applicants and their son applied by summons to the Judge for an extension of time to appeal the Judge’s decision of 19 December 2018. 

16.  No reason was given for the delay in the supporting affirmation made by the 1^st applicant.  In her decision dismissing the application[7], the Judge pointed out that the Form CALL-1 was sent to the address at which the applicants reside and no reason had been offered as to why they did not receive it.  The Judge also noted that the applicants were intending to return to India but would prefer a delay because of the current pandemic, and the sole reason for their application for leave to appeal out of time was to delay their return to India.  Having regard to the above and the applicants’ admission that they in fact had no grounds of appeal, the Judge concluded that the intended appeal had no reasonable prospect of success and dismissed the application. 

Renewed application for extension of time to this Court

17.  By summons filed on 17 August 2020, the applicants renewed their application for extension of time to appeal the Judge’s decision before this Court.  They, however, have not included their son in the application. 

18.  In the Summons, the applicants stated that: (1) they could not understand why the Judge refused to give them leave to apply for judicial review; (2) the Director and the Board did not find any problem in their life, and the Judge found no error of law and followed their decisions; (3) their lives are very cheap in that thousands of lower class people in India die every day by acts of terror or the influential people in society without anybody knowing; and (4) they hope they will get a good decision. 

19.  The applicants’ supporting affirmation only stated that they disagreed with the Judge’s decision.

Applicable legal principles

20.  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 the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted.

21.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court will examine the merits of the intended appeal.  Generally, an applicant must at least show that there is a reasonable prospect of success before extension of time is granted.  When the delay is inexcusable, the Court will adopt a higher threshold by requiring the applicant to demonstrate that there is a real prospect of success.

22.  In assessing the merits of the intended appeal, we shall have regard to the legal principles adopted by the Court in dealing with appeals in non-refoulement cases, which have been comprehensively set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].  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)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 RHC.

Discussion

23.  The applicants’ application is more than 16 months late, which is very serious.  As pointed out by the Judge, the applicants have given no explanation for their failure to appeal within the time limit.  In the absence of satisfactory reason for the delay, the applicants will have to show that the intended appeal enjoys real prospect of success. 

24.  The matters stated in the summons and the supporting affirmation do not constitute viable grounds of appeal.  Assessment of risks of harm is a matter for the primary decision makers.  The Judge had examined the decisions of the Director and the Board, and found no error of law, irrationality or procedural unfairness that justify the Court interfering by way of judicial review.  In the present application, the applicants have not identified any error in the Judge’s decision and reasons.  They have not put forward any substantial or proper ground for overturning the Judge’s decision.  In these circumstances, their intended appeal is bound to fail.

25.  As the intended appeal has no reasonable prospect of success, it would be futile to extend time for them to appeal.  Accordingly, we refuse the applicants’ application to extend time and dismiss their summons.

26.  Since the present application is totally without merit, we further make an order under Order 59, rule 2A(8) of the Rules of the High Court that the applicants may not request our determination to be reconsidered at an oral hearing.