RE KAWALJIT SINGH

CAMP 491/2021

[2022] HKCA 419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 491 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 297 OF 2021)

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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 8 March 2021, 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 11 October 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 12 September 2014 rejecting his non-refoulement claim.  The application was brought out of time by over three years.

2.  In his decision of 25 May 2021, Deputy High Court Judge K W Lung refused to extend time to the applicant’s application for leave to apply for judicial review.  In so doing, he had also considered the lack of merits of his intended judicial review application.

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 28 September 2021 (late by more than three and a half months)  before the Judge requesting an extension of time to appeal.  The Judge on 19 October 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 1 November 2021 (late by around six days), the applicant filed the present summons 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.  In May 2014, he left India and entered Bangkok.  He then left Bangkok and went to Macau.  From Macau, the applicant attempted to enter Hong Kong three times and was refused permission to land.  On the third time, he sought non-refoulement protection.  The applicant raised his non-refoulement claim on 28 May 2014 based on his fear that he would be harmed or killed by the father and the brother of a girl he loved because they disapproved of the relationship and they threatened to kill the applicant if he did not leave her or leave the village.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 12 September 2014.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

8.  The Director decided against the applicant’s right to life claim on 10 May 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2).

4)  The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.  The Board dismissed the applicant’s appeal on 11 October 2017 and the Director’s Decision was confirmed.  The Board held that the convoluted journey of the applicant to Hong Kong was not intended to seek protection from the alleged danger to his life.  He simply wanted to come to Hong Kong and stay here as a visitor for as long as possible.  This girlfriend’s father and brother beat him up as a warning but they had no intention to kill him.  The applicant failed to substantiate his claim on all grounds.

5)  Decisions of the Judge

10.  In his decision dated 25 May 2021, the Judge held that the applicant failed to establish the factual basis to support his claims.  There was no error of law, procedural unfairness, unreasonableness or irrationality in the Board’s decision.   

11.  In his decision dated 19 October 2021, the Judge held that the Board rejected the applicant’s claims on credibility and also on applicable grounds.  There was no realistic prospect of success.

6)  Legal principles

12.  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

13.  The applicant had three months to issue an application to the High Court for leave for judicial review under Order 53, rule 4 of the Rules of High Court (i.e. by 10 January 2018).  The applicant filed his Form 86 on 8 March 2021, meaning the applicant was late by more than three years, which is very substantial.  Due to the serious delay, the intended appeal must satisfy the Court his intended application has a real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.  The applicant did not give any explanation for his serious delay in his Form 86 and affirmation.  In any event, the applicant failed to put forward proper grounds of appeal.  We agree with the Judge’s analysis to focus on the consideration of merits of the intended appeal, and that the applicant was unable to show any reasonable prospect of success.

14.  The applicant was more than three months late when he filed his summons for extension of time.  This is a substantial delay.  Due to the serious delay, the intended appeal must have a real prospect of success before an extension of time will be granted : Re Ansar Muhammad [2018] HKCA 227.  The applicant claimed that he was being detained in the Castle Peak Immigration Centre and he did not have legal or translation assistance.  We do not accept this explanation.  The applicant must have known that his application was rejected by the Judge and there was no reason why he could not have filed a proforma notice of appeal first even if he would need time to formulate the grounds later.  In any event, we will turn to the merits of his intended appeal.

(2)  Prospect of the intended appeal

15.  In our judgment, the applicant does not have any prospect of success in his intended appeal.  A three-year delay in applying for judicial review is a substantial delay.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant extension of time for leave for judicial review and refused extension of time to appeal. 

16.  Since the applicant has not identified any error of law or procedural unfairness in the Judge’s decisions, 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 1 November 2021.