Case Detail

CAMP 265/2021

[2022] HKCA 1123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 265 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 736 OF 2017)

________________________

BETWEEN

	Gursewak Singh	Applicant
	and
	Director of Immigration	1^st Putative Respondent
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	2^nd Putative Respondent

________________________

Before: Hon Kwan VP and Yuen JA in Court

Date of Judgment: 5 August 2022

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Yuen JA) handed down on 14 January 2022 ([2022] HKCA 16). The Court of Appeal dismissed the applicant’s summons for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam dated 28 June 2018 ([2018] HKCFI 1411) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 2 March 2022 that the applicant shall lodge written submissions on or before 16 March 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. As the court registry has been temporarily closed in the period of general adjournment of the court due to public health reasons, the Registrar of Civil Appeals extended the time for lodging written submissions to 14 days after the resumption of court business. The court business has resumed since 12 April 2022. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers in this case, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of India. He entered Hong Kong as a visitor on 8 December 2014 and subsequently overstayed. He was arrested by the police on 11 February 2015. On 13 February 2015, he lodged a non-refoulement claim on the basis that, upon refoulement, he would be harmed or killed by his uncle because of a land dispute.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late for more than 2 years. It was refused by DHCJ K W Lung on 14 July 2021 [1].

5. The applicant filed a renewed application for extension of time with the Court of Appeal on 21 July 2021. The application was dismissed by the Court of Appeal on 14 January 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6. The applicant stated the following grounds in the Notice of Motion filed on 2 March 2022:

(1)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts to reject the claim while the real-life situation is different from what is mentioned in the COI.
(2)  The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.
(3)  The decision betrayed a biased and formulaic approach which is unlikely to fairly assess the danger to his life and is clearly calculated to reject his claim.

Analysis and disposition

7. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), 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. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

8. Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

9. Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

10. The applicant was late for more than 2 weeks in filing his Notice of Motion. He explained in his affirmation that he was late in doing so because he was not going out from home under the very critical situation in Hong Kong.

11. The applicant did not specify what critical situation he was referring to. If he was referring to the pandemic in Hong Kong, the pandemic was far more serious when he filed the present application in early March 2022, as compared to mid-February at the time of the prescribed deadline. The court business was also in normal operation at the relevant period of time. In these circumstances, the applicant’s explanation cannot constitute good ground for the court to grant extension of time.

12. Even if the court is minded to grant extension of time, the applicant’s grounds in the present application are just bare assertions. He failed to demonstrate that the Court of Appeal’s decision is wrong in dismissing his application and he has not identified any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

13. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 2 March 2022.

(Susan Kwan)
Vice President

(Maria Yuen)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 1188

CAMP 265/2021

[2022] HKCA 16

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 265 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 736 OF 2017)

________________________

BETWEEN
	Gursewak Singh	Applicant
	and
	Director of Immigration	1^st Putative Respondent
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	2^nd PutativeRespondent

________________________

Before: Hon Kwan VP and Yuen JA in Court

Date of Written Submission: 21 July 2021

Date of Judgment: 14 January 2022

________________________

J U D G M E N T

________________________

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

1. On 28 June 2018, Deputy High Court Judge Josiah Lam refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1] (“the Judge’s Decision”).

2. On 31 March 2021, the applicant filed a summons for leave to appeal out of time against the Judge’s Decision. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal against the judge’s order refusing leave within 14 days after such refusal. Thus, the time for filing his appeal ended on 12 July 2018. He was more than two years out of time.

3. On 14 July 2021, Deputy High Court Judge K W Lung refused to grant extension of time to appeal against the Judge’s Decision on the basis that the applicant failed to show a reasonable prospect of success in his intended appeal (“DHCJ Lung’s EOT Decision”)[2].

4. On 21 July 2021, the applicant filed the present application with the Court of Appeal seeking to renew his application to appeal the Judge’s Decision out of time.

5. The applicant is a national of India. He entered Hong Kong as a visitor on 8 December 2014 but overstayed since 23 December 2014. On 11 February 2015, he was arrested by the Hong Kong police. On 13 February 2015, he lodged a non-refoulement claim. His claim was made on the basis that, upon refoulement, he would be harmed or killed by his uncle Mahinder Singh (“Mahinder”) because of a land dispute.

6. By a Notice of Decision dated 15 June 2017 (“the Director’s Decision”), the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4], persecution risk[5] and BOR 2 risk[6].

7. The applicant appealed against the Director’s Decision to the Board. The Board conducted a hearing on 5 September 2017. Before the Board, the applicant further provided two affidavits which contained similar contents of his claim.

8. Having considered all the evidence, the Board found that (1) the applicant provided different accounts as to the alleged first attack; (2) in the alleged second attack, Mahinder only used foul language to threaten the applicant; (3) for the alleged third attack, the applicant confirmed that Mahinder did not do anything harmful to him; (4) the applicant was free from any harm from Mahinder for two years and was able to stay in Moga City for six months without any incidents, and (5) the applicant only sought protection after he was arrested by the Hong Kong police. Such act was inconsistent with someone who genuinely wanted to seek protection. When assessing the individual grounds, the Board further found that there was no state involvement and that the dispute with Mahinder was entirely private. In any event, after reviewing the country of origin information, the Board concluded that state protection and internal relocation were both available to the applicant. Thus, by a decision dated 8 September 2017 (“the Board’s Decision”), the Board dismissed the applicant’s appeal.

The Judge’s Decision

9. On 6 October 2017, the applicant applied for leave to bring a judicial review against the Director’s Decision and the Board’s Decision. He advanced several grounds of review which were summarized in §§32 to 33 of the Judge’s Decision. After reviewing the Board’s Decision and the Director’s Decision in light of the applicant’s grounds of review, the judge refused the applicant’s leave application.

10. On 31 March 2021, the applicant took out a summons seeking to appeal the Judge’s Decision out of time. By DHCJ Lung’s EOT Decision, DHCJ Lung refused to extend time to the applicant as he failed to prove that his intended appeal had any prospect of success.

The renewed application to Court of Appeal

11. On 21 July 2021, the applicant sought to renew his extension of time application before the Court of Appeal. In his summons, the applicant only asked this court to save his life and sought to challenge the Judge’s Decision. In his supporting affirmation filed on the same date, the applicant attached DHCJ Lung’s EOT Decision “in order to give the court a more complete picture about [his] case”.

12. In the applicant’s written submissions of 21 July 2021, he listed four riders. Under rider (A), he repeated his personal background and his claim. He then provided a definition of asylum under rider (B). For rider (C), he set out his complaints that the Board failed to make sufficient inquiries and that he did not receive duty lawyer’s assistance. He also requested under rider (D) that the court should save his life as a human being. In addition, the applicant cited section 37ZO of the Immigration Ordinance, Cap 115. However, he did not elaborate on the relevance of such provision.

Analysis and disposition

13. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (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.

14. We consider the applicant’s delay of more than two years as very substantial and the applicant has not provided any cogent explanation for his delay. His explanation that he did not receive the Judge’s Decision remained a bare assertion without any evidential support. As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz[2021] HKCA 636 at §15; ReAnsarMuhammad[2018] HKCA 227 at §8; Re MA[2019] HKCA 1020 at §18.

15. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

16. An appeal against the refusal of leave by a judge in the Court of First Instance is not an 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.

17. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18. As set out above, the only arguments in support of his present application are those under rider (C) of his written submissions. But they are not grounds of appeal against the Judge’s Decision. Further, they are arguments that were advanced but rejected by the judge. The applicant failed to identify any errors with particulars as to why the judge was wrong in so holding.

19. As for his complaints that he did not receive language and legal assistances from the duty lawyer service, they are misconceived as he was represented by the duty lawyer before the Director. There is simply no viable ground of appeal against the Judge’s Decision.

20. For all the above reasons, we do not see any prospect of success in the applicant’s intended appeal. It will be futile to grant him an extension of time. We therefore dismiss the applicant’s summons of 21 July 2021.

(Susan Kwan)
Vice President

(Maria Yuen)
Justice of Appeal

The Applicant, acting in person

[1] [2018] HKCFI 1411

[2] [2021] HKCFI 1188

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] This refers to 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).

[5] 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.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

GURSEWAK SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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