RE SINGH POPINDER

CAMP 90/2022

[2022] HKCA 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 90 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 414 OF 2017 AND HCAL 462 OF 2018)

(CONSOLIDATED)

____________________

____________________

____________________

D E C I S I O N

____________________

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

1)  Renewed application for extension of time to appeal

1.  On 17 July 2017, the applicant issued his application for leave for judicial review by Form 86 in HCAL 414/2017. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 7 July 2017 which dismissed his appeal against the decisions of the Director of Immigration (‘the Director’) dated 7 April 2016 and 24 January 2017 rejecting his non-refoulement claim.  Deputy High Court Judge Woodcock (‘Judge Woodcock’) refused to grant leave for judicial review on 31 January 2018.

2.  The applicant then on 21 March 2018 filed another Form 86 under HCAL 462/2018 for leave to apply for judicial review out of time.  Deputy High Court Judge Bruno Chan (‘Judge Chan’) found that the applicant took out a separate action when his intention was to appeal the decision in HCAL 414/2017 out of time.  The applicant was wrongly advised by a friend to take out a separate judicial review action in seeking an appeal.  Judge Chan therefore treated the two actions as one application for leave to appeal out of time in HCAL 414/2017, and consolidated the two actions together. 

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of Judge Woodcock.  Being out of time for about five weeks, the applicant took out an application on 21 March 2018 in HCAL 462/2018 before Judge Chan requesting an extension of time to appeal, where the applicant used the wrong form as has been held.  Judge Chan on 4 November 2019 rejected the applicant’s application for leave to appeal out of time in HCAL 414/2017, and also dismissed his Form 86 filed under HCAL 462/2018.    

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. 11 November 2019).  On 12 April 2022, being over two years out of time, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

5.  On 17 May 2022, the Appeal’s Registry received a letter from the applicant who indicated that he wished to withdraw his summons in CAMP 90/2022.  He stated that his problem is solved and his life is safe.  He stated that he wishes to go back to his country.

6.  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 letter, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

7.  Briefly stated, the applicant is an Indian national.  He entered Hong Kong as a visitor in December 2013 but overstayed.  The applicant raised his non‑refoulement claim in January 2014 on his fear that he would be harmed or killed by his uncle because of a land dispute with him.

3)  The Director’s Decisions

8.  The Director decided against the applicant’s non‑refoulement claim on 7 April 2016.  The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

9.  The Director further decided against the applicant’s right to life claim on 24 January 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Hong Kong Bill of rights (‘BOR 2’).

4)  The Board’s Decision

10.  The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Board.  An oral hearing was conducted on 13 March 2017.  The Board dismissed the applicant’s appeal on 7 July 2017 and the Director’s Decision and Director’s Further Decision were confirmed.  The Board held that remarkably, the applicant alleged entirely different murder victims to the Director and the Board.  The applicant told the Director that Ranjit was murdered, while telling the Board that Jaswinder was murdered.  He also identified different individuals as the alleged murderers.  The alleged date of the murder was also inconsistent.  The Board concluded that the applicant was not a witness of truth.  No weight was to be attached to anything the applicant said except for his status as an Indian national.  

5)  Decisions of the Judge

11.  In her decision dated 31 January 2018, Judge Woodcock held that the fact that the applicant was unrepresented at the appeal before the Board has not been shown to be procedurally unfair.  She further held that the applicant was inconsistent in first saying that the letter from the Immigration Department requesting for further information under his BOR 2 claim was too technical for him, yet later he denied ever receiving such a letter.  She held that the applicant’s complaint that there was no screening interview from the Director was never mentioned before the Board.  The applicant already utilized the channel of appeal before the Board.  There was no error of law or procedural unfairness.    

12.  In his decision dated 4 November 2019, Judge Chan held that the applicant’s explanation for his delay was not acceptable.  He held that there were no grounds of appeal nor particulars of any errors in decisions in any of the applicant’s documents filed with the Court.  The applicant simply stated that he has married a local Hong Kong resident and has formed a family in Hong Kong.

6)  Legal principles

13.  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

14.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days from the decision of Judge Woodcock to take out an application for appeal. He was about five weeks late when he filed his application with the wrong form and in the wrong action.  His reasons were that he never received the decision from the Court, and that he was detained at Lai Chi Kok Reception Centre.  We agree with Judge Woodcock that the applicant failed to show any error of law in the Board’s decision and his extension application for leave for judicial review was rightly refused.

15.  The Form CALL-1 decision was handed down on 31 January 2018.  The applicant had 14 days to appeal the decision as of right (i.e. by 14 February 2018).  The applicant was about five weeks late when he filed his extension of time to appeal application on 21 March 2018 (albeit using the wrong form).  The lateness was substantial.  Due to the serious delay, the intended appeal must show a real prospect of success before an extension of time will be granted : Re Ansar Muhammad [2018] HKCA 227.  The applicant made bare assertion that he never received the decision, but the Court record showed that the decision of 31 January 2018 was mailed to him on the same date without being returned undelivered.  Importantly, the applicant did not state any proper grounds for applying for extension of time.

16.  The present summons for a renewed application for extension of time to appeal was filed on 12 April 2022 out of time.

17.  In the applicant’s summons and affirmation, the applicant repeated that he was out of time because he did not receive any decision from the High Court.  He only got to know about it from the Immigration Officer.  He was later detained in custody at Lai Chi Kok.  As Judge Woodcock has pointed out, according to the Court record, the relevant documents had been sent out by post to the applicant without any notice of them being returned undelivered.  The applicant has not explained why he took another two years to lodge the present application.

(2)  Prospect of the intended appeal

18.  The applicant failed to show any error in the Board’s decision.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

19.  The Judges had considered all the relevant matters including the merits of the applicant’s case when they both refused to grant either leave for judicial review or extension of time for leave for judicial review.

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

8)  Disposition

21.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 12 April 2022.

22.  We would also according to the applicant’s request dismiss the applicant’s summons filed on 12 April 2022.