RE JATINDER KUMAR

CAMP 149/2021

[2022] HKCA 399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 149 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2404 OF 2018)

______________________

______________________

___________________

J U D G M E N T

___________________

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

1.  On 27 July 2020, DHCJ K.W. Lung (“the Judge”) refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 7 January 2021 for extension of time to appeal.  That summons was dismissed by the Judge on 13 April 2021. 

3.  On 10 May 2021, the applicant filed his summons in CAMP 149/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 10 June 2021, the applicant should lodge with the court his written submissions in support of the Summons on or before 24 June 2021.  He failed to do so.  The Registrar further directed that in the event the applicant fails to lodge his written submissions, he shall be deemed to have abandoned his right to rely on written submissions, and the application will be disposed of on paper on available materials.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is an Indian national. He came to Hong Kong on 20 February 2014 as a visitor and was permitted to stay until 6 March 2014.  He overstayed and was arrested by police on 28 March 2014. On 30 March 2014, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by a group of murderers (“the murderers”) who murdered his ex-girlfriend Gagandeep Kaur and her family as he was the only eye witness to the murder. The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2020] HKCFI 1656).

7.  By a Notice of Decision dated 6 April 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 21 September 2018.  By its decision dated 19 October 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [59] to [87], the Board found that the applicant’s evidence was vague, unconvincing and inconsistent.  The Board did not accept that the murder victims were his ex-girlfriend and her family, nor did it accept that he had witnessed the incident, and found that he had manufactured a story based on news articles about the murder incident for the purpose of his non-refoulement claim.  As such, the Board did not accept that he would face a real risk of harm upon his return to India and rejected his claim on all applicable grounds.

Application for leave to start judicial review

9.  On 30 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he did not provide any proper grounds of relief and merely requested the court to reconsider his case.

The JR Decision

10.  The applicant attended an oral hearing on 4 September 2019.  After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [13] - [15] of the JR Decision:

“13.  The applicant appeared before me.  He confirmed that he was able to express freely before the immigration officer and the Adjudicator.

14.  I put the Board’s findings to him.  He said that he understood.  He complained that the Adjudicator did not believe him.  But he was unable to identify any reasons for his complaint.

15.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 7 January 2021 for extension of time to appeal.  That was dismissed by the Judge on 13 April 2021.  Hence, the Summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1), the applicant was late by 4 months between the JR Decision and the summons filed in the Court of First Instance.  His delay was significant. 

13.  As for (2), the reasons for the delay, the applicant alleged in his supporting affirmation dated 7 January 2021 that he did not receive the court order and the JR Decision “within reasonable period of time allowing the applicant to appeal within time”.  The applicant did not provide any detailed reason and/or supporting evidence to explain why he did not receive the JR Decision.  The court file showed that the JR Decision was sent to the applicant’s updated address[5] on 27 July 2020 and it was not returned undelivered. In the circumstances, we do not accept the applicant’s alleged excuse.

14.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by the Judge.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision.  It is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse leave. 

15.  In his summons and supporting affirmation before this Court, he also failed to provide any ground to reverse the JR Decision.  He merely repeated his alleged reason for delay, i.e. that he did not receive the JR Decision within 14 days from the date of judgment.

16.  It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as his evidence was vague and inconsistent, and the Board found that he had manufactured a story to provide a basis for his claim.  It was perfectly open to the Board to reach its factual findings and conclusions, and the court would only intervene if there were valid public law grounds.  We do not see any in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

17.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 10 May 2021.