RE SARBJEET SINGH

CAMP 404/2021

[2022] HKCA 598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 404 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 596 OF 2019)

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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 1 March 2019, 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 22 February 2019 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 21 December 2018 rejecting his non-refoulement claim. 

2.  In his decision of 9 March 2021, Deputy High Court Judge C P Pang 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, the applicant took out an application on 20 May 2021 (late by almost two months)  requesting an extension of time to appeal.  Deputy High Court Judge P Li on 15 September 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.  On 24 September 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 and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  The applicant is an Indian national.  He entered Hong Kong in February 2013 as a visitor but overstayed.  He remained undetected for four years and ten months until he was arrested on 23 December 2017.  He was then imprisoned for a period of 15 months for certain offences including using an identity card of another person.  After his release from prison, the applicant raised his non-refoulement claim in October 2018 based on his fear that he would be harmed or killed by Shubeg and Beldev because he had cut off Shubeg’s fingers with a sickle following an attack by them on his father’s farmland.  The applicant suffered physical injuries.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non-refoulement claim on 21 December 2018.  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 27 December 2018.  An oral hearing was not conducted as the applicant stated that he did not require an oral hearing.  The Board dismissed the applicant’s appeal on 22 February 2019 and the Director’s Decision was confirmed.  The Board did not accept the applicant’s story.  It held that details of the applicant’s alleged story are either missing or woefully vague.  The applicant did not make an application for non-refoulement when he first arrived in Hong Kong at his earliest convenience but only did so after he was arrested.  He did not seek help for over four and a half years.  He failed to establish his case on any of the applicable grounds.

5)  Decisions of the Judges

9.  In his decision dated 9 March 2021, Judge C P Pang held that the applicant only provided general and vague assertion without particulars on why the Board was unfair or unreasonable.   

10.  In his decision dated 15 September 2021, Judge P Li held that the applicant did not notify the Court with his new correspondence address and must bear the consequences of such unilateral amendment.  Court papers were sent to the applicant’s last known address.  The Court adopted the findings of the Board.

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 late by almost two months when he lodged his application for extension of time to appeal.  This is substantial delay.  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 Judge P Li’s analysis that the judgment was properly sent and had not been returned undelivered. 

(2)  Prospect of the intended appeal

13.  In the applicant’s present summons and affirmation, he stated that he was unrepresented and did not have access to legal advice.  He stated that there was a good ground of appeal which was not considered.

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

15.  Judge C P Pang had considered all the relevant matters to the merits of the applicant’s case when he refused to grant leave for judicial review. 

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

8)  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons dated 24 September 2021.