RE RANJODH SINGH

CAMP 42/2023, [2026] HKCA 910

On appeal from [2022] HKCFI 2399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 42 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 815/2020)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 15 August 2022[1] (“the Leave Decision”) refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 1 April 2020 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration dated 19 February 2019 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out therein, which will not be repeated.

3.  After considering the documents filed by the applicant, including the applicant’s affirmation filed on 15 July 2022 (after he filed his Form 86) applying to “cancel” his leave application for the reason that he wanted to return to his home country, the Judge dismissed the application for the reasons stated at [3]-[5] of the Leave Decision.

4.  By a decision dated 18 January 2023[2] (“the EoT Decision”), the Judge refused to extend time for the applicant to appeal against the Leave Decision.

The present application for extension of time to appeal

5.  According to the court’s record, a copy of the Leave Decision and a sealed copy of the Judge’s order was sent by post to the applicant at his last known address on 15 August 2022, which was not returned undelivered.

6.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days from the date of the Leave Decision.  

7.  Subsequently, the applicant made an application in the court below for an extension of time to appeal against the Leave Decision, which was dismissed by the Judge for the reasons stated in the EoT Decision.  

8.  By a Summons filed on 1 February 2023, the applicant renewed his application for an extension of time to appeal before this court.

9.  In the Summons and his supporting affirmation, the applicant merely stated that he filed the Summons to renew his application for “time extension”, without setting out any grounds in support.

10.  In his written submissions dated 10 February 2023, the applicant complained, inter alia, that he was prejudiced by reason of the lack of legal representation and language assistance in the proceedings below. 

11.  On 13 June 2023, the applicant filed a Request for Dismissal of Appeal, asking for the dismissal “of the appeal filed on the 1 day of Feb 2023” (“the Request for Dismissal”).   

12.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.  

Discussion

13.  The Leave Decision was sent to the last known address of the applicant, but was not returned undelivered.  The inference to be drawn is that the applicant has had notice and knowledge of the Judge’s order and the contents of the Leave Decision in the period within which he was permitted to lodge an appeal.  In any event, it was incumbent upon the applicant to notify the court of a change of address, if any, as soon as possible.  The consequences of failure to do so must lie with him.   

14.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained how and when he had come to learn of the contents of the Leave Decision. Moreover, the applicant has, after the filing of the present Summons, applied for the dismissal of it by filing the Request for Dismissal.  The present application is thus liable to be dismissed on these bases alone.

15.  We havenonetheless proceeded to consider the merits of the intended appeal.

16.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. In the circumstances of this case, the Judge had rightly dismissed the applicant’s leave application below in the first instance upon the applicant’s own request for it to be ‘cancelled’. 

18.  We have in any event subjected the Board’s Decision to anxious scrutiny, and we see no basis for intervention by the Judge nor by this court.  The applicant has wholly failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

19.  For completeness, we are unpersuaded by the applicant’s complaint of prejudice caused by his lack of legal representation.  As this court has repeatedly held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

20.  Finally, the applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

21.  For these reasons, we do not in any event see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The Summons filed on 1 February 2023 is accordingly dismissed.