RE SUKHWINDER SINGH

CAMP 15/2023, [2023] HKCA 689

On Appeal From [2022] HKCFI 3392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2460 OF 2018)

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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 5 November 2018, the applicant issued his application for leave for judicial review by Form 86 in HCAL 2460/2018.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 29 October 2018 which dismissed his appeal against the decision of the Director of Immigration (‘the Director’) dated 25 January 2018 rejecting his non-refoulement claim.  Deputy High Court Judge K.W. Lung refused to grant leave for judicial review on 14 November 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge.  Being out of time for about four days, the applicant took out an application on 2 December 2022 requesting an extension of time to appeal.  The Judge on 5 January 2023 rejected the applicant’s application for leave to appeal out of time.    

3.  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. 12 January 2023).  On 13 January 2023, being one day out of time, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

4.  On 28 April 2023, the Appeal’s Registry received a letter from the applicant who indicated that he wished to withdraw his appeal in CAMP 15/2023.  He stated that his problem is solved and it is safe for him to go back to India.

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

2)  Factual background

6.  Briefly stated, the applicant is an Indian national.  He landed in Hong Kong on 28 December 2014 but was refused entry.  On 6 September 2015 the applicant entered Hong Kong illegally again through the Mainland.  The applicant raised his non‑refoulement claim on 5 April 2016 on his fear that he would be harmed or killed by the people of Shiromani Akali Dal Party (SAD) if he returned to India.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non‑refoulement claim on 25 January 2018.  The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was conducted on 11 September 2018.  The Board dismissed the applicant’s appeal on 29 October 2018 and the Director’s Decision was confirmed.  The Board held that the applicant’s claims may have been learned from others rather than based on his actual experiences.  Many aspects of the applicant’s account were implausible or confusing, and he was unable to provide clarification or explanation.  The applicant consistently stated that he fears harm from SAD but provided totally different reasons why that was so.  The Board had significant doubts about the claims’ credibility overall.  The Board held that in totality, the applicant’s claims were not true.

5)  Decisions of the Judge

9.  In his decision dated 14 November 2022, the Judge held that the applicant had no valid reason to challenge the Board’s decision.  There was no error of law or procedural unfairness.    

10.  In his decision dated 5 January 2023, the Judge held, amongst other things, the Board did not accept the applicant’s evidence and even if it did, internal relocation was possible.

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.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days from the decision of the Judge to take out an application for appeal.  He was about four days late when he filed his application.  His reason was that he received the decision from the Court out of time.  We agree with the Judge that the applicant failed to show any realistic prospect of success.

13.  The Form CALL-1 decision was handed down on 14 November 2022.  The applicant had 14 days to appeal the decision as of right (i.e. by 28 November 2022).  The applicant made bare assertion that he received the decision late, but the Court record showed that the Form CALL-1 was mailed to him on 14 November 2022 without being returned undelivered.  Importantly, the applicant did not state any proper grounds for applying for extension of time.

14.  The present summons for a renewed application for extension of time to appeal was filed on 13 January 2023 out of time by one day.

15.  In the applicant’s summons and affirmation, he said that the decision maker did not consider his case properly.  He stated that the decision made him unhappy.  He stated that he is now liable to relocate to risk state.  He stated that he has problems in his home country.  In his written submissions, he stated bare allegations that are unsupported by evidence and general non-refoulement principles without specifically pointing out where the Judge was wrong in his rulings.  Nor did he address the inconsistent evidence that was provided by him to the Board.

(2)  Prospect of the intended appeal

16.  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.

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

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

8)  Disposition

19.  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 13 January 2023.

20.  We would also according to the applicant’s request dismiss the applicant’s summons filed on 13 January 2023.