RE BEANT SINGH

CAMP 140/2022, [2024] HKCA 584

On appeal from [2021] HKCFI 2275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 140 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2027 OF 2018)

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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.  On 12 December 2022, this court (Chu VP and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of DHCJ Bruno Chan dated 11 August 2021 refusing to grant leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal against the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the applicant’s application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed out of time on 6 February 2023, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant merely stated that the judgment of this court was “not good for [him]” and that he wished to “go to [the Court of Final Appeal]”.

4.  In his written submissions, lodged out of time on 21 February 2023, the applicant merely expressed in general terms that he was dissatisfied with the decisions made against him in the processing of his claim.

5.  On 5 June 2023, the applicant sent a letter to this court, seeking to “withdraw [his] appeal application under Notice of Motion CAMP 140/2022” and asked this court to “cancel all [his] cases in Hong Kong” because he “want[s] to go back to [his] home country India as soon as possible” (“the Request”).

6.  Having considered the applicant’s Notice of Motion and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  First, because the applicant had lodged his written submissions late, he is deemed to have abandoned his right to rely on the same.  In any event, the content of his written submissions do not advance nor assist his position in this application.

8.  Second, the Notice of Motion was filed out of time, and no explanation was provided by the applicant for the delay.  The delay of around 3 weeks was not insignificant, and the Notice is liable to be dismissed on this basis alone.

9.  Third, in light of the Request, it follows that there is no reason why the present application should not be dismissed.  

10.  The aforesaid notwithstanding, we have nonetheless proceeded to consider the merits of the application.

11.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

12.  Neither the Notice of Motion nor the (late) written submissions identify any supposed error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

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

14.  For these reasons, the Notice of Motion dated 6 February 2023 is dismissed.

CAMP 140/2022

[2022] HKCA 1797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 140 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2027/2018)

____________________

____________________

___________________

J U D G M E N T

___________________

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 Bruno Chan (“the Judge”) dated 11 August 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 21 September 2018 (“the Board’s Decision”), dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 12 March 2015 and 8 June 2017 (“the Director’s Decisions”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India. He entered Hong Kong on 11 March 2014 and was permitted to remain as a visitor.  He overstayed, and on 10 April 2014 he surrendered to the Immigration Department.  The applicant lodged a non-refoulement claim on the same day.

3.  The applicant’s claim was based on a fear of being harmed or killed by his girlfriend’s family.  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 12 March 2015 and a Further Notice of Decision dated 8 June 2017, the Director decided against the applicant’s claim.  The Director’s Decisions covered the torture risk[2], the persecution risk[3], the BOR 2 risk^[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 8 August 2018, the Board dismissed the applicant’s claim.  In reaching this decision, the Board found numerous inconsistencies and discrepancies in the Applicant’s evidence that raised serious concerns on the credibility of his account of material events.  The Board concluded that he would not face a real chance of harm from anybody in India.

The Judge’s decision

6.  The applicant filed a Form 86 on 26 September 2018 seeking to judicially review the Board’s Decision, without setting out any grounds of review.  In his supporting affirmation, the applicant simply stated that he was dissatisfied with the Board’s Decision, without giving any particulars.

7.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [10] to [16] of the CALL‑1 Form:

“10.     On 26 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, while in his supporting affirmation of the same date and at the hearing of his application, he just stated that he is not satisfied with the decision as he still has problem in his home country that he should be allowed to remain in Hong Kong but without putting forth any proper ground for his intended challenge.

11.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 73 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The present application for extension of time to appeal

8.  The applicant’s address as stated in his Form 86 was at 10 Wan Lok Street, To Kwa Wan, Kowloon.  However, on 2 March 2021, the applicant provided the court with an updated address, at 61 Ha Heung Road, To Kwa Wan (“the Ha Heung Road Address”).

9.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Ha Heung Road Address on 11 August 2021.  This letter was not returned undelivered.

10.  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 of the Judge’s decision dated 11 August 2021.

11.  The applicant took out a summons in the Court of First Instance on 6 October 2021 seeking extension of time to appeal, in which his address was also stated to be the Ha Heung Road Address.  In the summons and in his supporting affirmation filed on the same date, he stated that he did not receive the Judge’s order and decision. 

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 27 April 2022[6].

13.  By a summons filed on 5 May 2022, the applicant renewed his application for an extension of time to appeal before this court. In the summons and his supporting affirmation, the applicant again stated that he did not receive the decision of the Judge dated 11 August 2021.

14.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court. He is thus deemed to have abandoned his right to rely on written submissions.

15.  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

16.  As noted above, the Judge’s decision was sent to the last known address of the applicant (which was the Ha Heung Road Address) on 11 August 2021, and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

17.  In the circumstances, we reject the applicant’s explanation or reason for his delay in lodging his intended appeal.

18.  We have nonetheless proceeded to consider the merits of the intended appeal.

19.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

20.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

21.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

22.  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 5 May 2022 is accordingly dismissed.