RE GURDEV SINGH

CAMP 109/2018

[2018] HKCA 830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 109 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 325 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  By summons filed on 12 July 2018, the applicant applies for leave to appeal out of time against the decision of Li J (“the Judge”) given on 15 January 2018 refusing him leave to apply for judicial review. The applicant’s intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 5 February 2016 rejecting his non-refoulement claim and the decision of the Torture Claims Appeal Board (“the Board”) dated 25 May 2017 refusing to extend the time for him to file an appeal against the Director’s decision.

2.  Under Order 59 rule 2A and 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.  We are of the view that it is appropriate to determine the present application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is an Indian national.  On 22 November 2015, he came to Hong Kong from Macau but was refused entry by the Director and removed to Macau on the same day.  On 24 November 2015, he made another attempt to enter Hong Kong from Macau and on being refused entry, raised a claim for non-refoulement protection.  

4.  The basis of the applicant’s claim was that he had been falsely accused of tearing off the Sikh’s Holy Book, and if he were to return to India he would be harmed or killed by Sikh supporters and would also be tortured by the police due to the false accusation filed against him.  The background of the applicant and his case were detailed in the decision of the Director, and summarized by the Judge at [1] to [3] of the Form CALL-1 dated 15 January 2018, [2018] HKCFI 71.  It is not necessary to repeat them here.

5.  By a Notice of Decision dated 5 February 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], the persecution risk[2], the BOR 3 risk[3] and the BOR 2 risk[4] grounds.   

6.  The applicant had 14 days to lodge an appeal to the Board against the Director’s decision[5].  On 23 December 2016, almost ten months after the Director made his decision, the applicant lodged an appeal against the Director’s decision.  He explained the delay on the basis that he had not received the Director’s decision.

7.  By a decision dated 25 May 2017, the Board refused to allow the applicant to file his appeal out of time.  The Board deemed the applicant to have received the Director’ decision on 12 February 2016 (7 days after the date of the decision), and took 26 February 2016 as the last day the applicant should have filed his appeal to the Board.  For the reasons given in [7] to [23] of its decision, the Board found the applicant’s reason for delay unconvincing, and was further of the view that the applicant’s non-refoulement claim had no merit and it was not unjust to refuse the late filing of the appeal.

8.  On 26 June 2017, the applicant filed his Form 86 together with a supporting affirmation to apply for leave to judicially review the decisions of the Director and the Board, relying on the grounds that he was not provided with legal representation and language assistance in respect of his appeal to the Board.  

9.  At the applicant’s request, an oral hearing was listed for 17 August 2017.  The applicant was absent at the hearing.  The notice of hearing sent to the address stated in the Form 86 and the applicant’s Form 8 (recognisance form) by ordinary and registered post was returned for the reason that the address was incomplete.  The Judge proceeded to consider the application on paper.  He considered the intended judicial review was unarguable and had no realistic prospect of success.  He dismissed the leave application and gave his reasons in [11] to [14] of the Form CALL-1 as follows:   

“11. In the applicant’s affidavit, he complained that he was not given legal representation on appeal to TCAB. The applicant was assisted by the Duty Lawyer when his claim was processed by the Director. He did not file the appeal to TCAB on time. According to his Form 8, he was released on 14 March 2016. He should be in detention when he received the decision and during the period when he should have filed a notice of appeal.

12. The applicant had the assistance from the Duty Lawyer Services to prepare for the NCF. The content must have been explained to him orally in his language by an interpreter although it was not translated in writing.

13. In failing to lodge an appeal in the TCAB, the applicant had not exhausted alternative procedures to challenge the decision of the Director. There was no exceptional circumstance to justify his conduct. This alone is sufficient to refuse the leave application.

14. Having considered all the information above, I agree with the findings of the Director of immigration and the Adjudicator.  The applicant had not exhaust all revenue of appeal.  I do not find any error in law or in procedure.  I do not find any public law ground either.”

10.  The 14-day period[6] for the applicant to appeal against the Judge’s decision expired on 29 January 2018. On 12 July 2018, the applicant took out the present summons seeking leave to appeal out of time. 

11.  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 putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

12.  The applicant was late by nearly six months, which was a serious delay.  He explained in his affirmation that he did not receive the court’s papers informing him of the refusal of his application, and was only informed of the court’s decision by the officer of the Tuen Mun Detention Centre.  We note from the Court file that, similar to what happened to the notice of hearing, the Form CALL-1 and the Judge’s Order sent to the address given by the applicant in the Form 86 and his affirmation were returned.  This applicant gave the same address in the present summons and the supporting affirmation.  We also note that the applicant conducted a search of the Court file on 9 July 2018, three days before the present summons was filed.  However, it remains unexplained as to why the court documents sent to the address supplied by the applicant were all returned. 

13.  We turn next to consider the prospect of success of the applicant’s intended appeal, which is a crucial factor in the Court’s exercise of discretion to extend the time to appeal: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226. 

14.  The applicant did not file a draft Notice of Appeal setting out his grounds of intended appeal.  In his written submission dated 6 August 2018, he only stated he would suffer hardship if refouled to India. 

15.  What was advanced by the applicant does not constitute a valid ground of appeal.  He has not identified any error in the Judge’s decision and reasons, or in the Board’s decision to refuse to allow him to file an appeal out of time.  We agree with the Judge that the intended judicial review is not reasonably unarguable and that leave to apply for judicial review should be refused.       

16.  For the above reasons, the applicant’s intended appeal has no prospect of success.  As such, it would be futile to extend the time for appeal.  Accordingly, we refuse the application for leave to appeal out of time and dismiss the summons.

17.  As the 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 applicant may not request our determination to be reconsidered at an oral hearing.