RE MAURYA SHAILESH KUMAR

CAMP 298/2021

[2021] HKCA 2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 298 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 774 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.  On 3 May 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 29 March 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 11 April 2017 rejecting his non-refoulement claim.  The application was brought within time.

2.  In his decision of 14 September 2020, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time for about four months, the applicant took out an application on 29 January 2021 before the Judge requesting an extension of time to appeal.  The Judge on 6 July 2021 rejected the applicant’s application.    

4.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. by 13 July 2021).  On 29 July 2021, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal. 

5.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  Briefly stated, the applicant is an Indian national.  He entered Hong Kong as a visitor in March 2014 but overstayed.  The applicant raised his non‑refoulement claim in late March 2014 on his fear that he would be harmed or killed by his uncle because his father refused to transfer a piece of land to him.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim on 11 April 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 24 April 2017.  An oral hearing was conducted on 19 March 2018.  The Board dismissed the applicant’s appeal on 29 March 2018 and the Director’s Decision was confirmed.  The Board held that the applicant was not a credible witness.  It did not accept that there was any devolvement of ancestral farm land on the applicant’s father or uncle Ram. The Board disbelieved that there was any land dispute.  The uncle did not threaten to harm the applicant.  The applicant would not face danger if he returns.

5)  Decisions of the Judge

9.  In his decision dated 14 September 2020, the Judge held that the applicant provided no proper ground for his intended application and he failed to show any error of the Board.    

10.  In his decision dated 6 July 2021, the Judge held that he did not accept the bare assertion of the applicant that he never received the Court’s decision in his mail.  He held that the applicant had not put forward any proper ground of appeal and he failed to show there is any error in the Court’s decision.  

6)  Legal principles

11.  In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

12.  The applicant was about four months late.  The lateness was substantial.  Due to the serious delay, the intended appeal must satisfy real prospect of success before an extension of time will be granted : Re Ansar Muhammad [2018] HKCA 227.  We agree with the Deputy Judge’s view on the lack of merits of the intended appeal and the applicant had failed to point out any errors of the Board or the Court.

13.  In the applicant’s summons and affirmation for his renewed application for extension of time to appeal, the applicant stated that he was out of time because the relevant court documents including the Form CALL‑1 were never received by him. The applicant stated he had to search the court file before he was able to have the relevant documents.  

14.  In his written submissions, the applicant provided factual background matters of his case.  He then repeated that he did not receive any document from the Court.

15.  As the Deputy Judge had pointed out according to court record, these relevant documents have been sent to him by post without any notice of being returned undelivered.

(2)  Prospect of the intended appeal

16.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

17.  The Deputy Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review. 

18.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

19.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 29 July 2021.