SANJEEV KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 273/2023

[2023] HKCFI 2946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 273 OF 2023

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 11 October 2023 (the “Summons”) seeking leave to appeal the order of this Court dated 30 August 2023 (the “Order”) refusing his applications for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 10 January 2023 (the “2023 leave application”); and the decision dated 5 January 2021 of an unidentified decision-maker in respect of which the Board and the Director of Immigration are named as the proposed respondent (the “2021 leave application”). The 2023 leave application was refused for lack of prospect of success. The 2021 leave application was dismissed for want of subject matter because upon the Court’s enquiries, neither the Director nor the Board had made any decision in respect of the Applicant other than the ones referred to in the 2023 leave application. The decision allegedly dated 5 January 2021 is a fictitious decision.

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 11 October 2023 when the Summons was filed, this application was 28 days out of time. Leave to appeal out of time is required.

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted. Usually, unless the sum total of the first three factors is in favour of grant of extension of time, there is no need to consider the fourth factor.

Length of delay, reasons for the delay and grounds of the intended appeal

4.  The application is 28 days late which is very substantial in the context of a 14-day period of appeal. In his Summons and supporting affirmation, the Applicant explained that he “did not get the High Court decision so [he] failed to appeal”. The is an empty allegation lacking in particulars to enable this Court to determine if indeed he has a reasonable explanation for the delay. Directions were therefore given to him to file an affirmation or a statement setting out:

(a)  The date and circumstances he came to know about the Order he sought to appeal; and

(b)  The grounds of the intended appeal.

5.  In purported compliance with the directions, the Applicant wrote to this Court as follows:

“My name is Sanjeev Kumar. I am an Indian. My non-refoulement claim was dismissed by Director of Immigration and Adjudicator of Torture Claims Appeal Board. I came to the High Court for leave to apply for judicial review. The High Court did not give me justice. Every where I was cheated. The Director did not give me justice Adjudicator too. I had a hope to the High Court But I was wrong. If High Court gave me leave I can try again. But I was fool.

Finaly (sic) I did not get the High Court decision. My reporting officer told me to come to the Court as my result came.

So I request to extend time for me to appeal.”

6.  In the first paragraph of his letter, the Applicant set out briefly the procedural background, his feeling that he was a fool, he was cheated, and he was not given justice by the Director, the Board and this Court. Insofar as this paragraph constitutes his grounds of appeal, it is lacking in particulars as to how he was not given justice by the Director, the Board and this Court.

7.  In the second paragraph of his letter, he repeated his allegation that he never received the decision of this Court, ie the Order and the Form CALL-1 and that he was informed by his reporting officer that this Court had made a decision in respect of his leave applications. Insofar as this paragraph sets out the circumstances as to how he came to know about the Order he sought to appeal, it does not give the date or the approximate date when he came to know about the Order. He had been given clear directions under Paragraph (1)(a) of the Directions to state the date he came to know about the Order. That date or the approximate date is the most crucial information for determining if his explanation, if ever he offers one, is reasonable. He failed to provide that important information which he had been specifically requested to provide.

8.  In his third and last paragraph, the Applicant just renewed his request for extension of time to appeal. He provided no explanation for the 28 days’ delay in appealing and not a glimpse of the grounds of his intended appeal.

9.  In summary, his letter did not comply with the Court’s directions. He did not provide information about the date when he came to know about the Order, which is a crucial piece of information required to enable this Court to assess the reasonableness of his explanation for the inordinate delay and which he had been specifically directed to provide. He did not provide his grounds of the intended appeal which he had also been specifically directed to provide and which is a crucial piece of information required for this Court to assess the prospects of success of his intended appeal and hence whether to grant extension of time to appeal. All he did by his letter was to express his dissatisfaction with the outcome of this Court’s decision, abusive allegations about not being given justice and empty and unsubstantiated allegations about not having received the Order in time to allow him to appeal.

10.  In conclusion, despite clear directions having been given to him and despite having been informed what is required to support an application for extension of time, the Applicant wholly failed to provide the information required to enable this Court to determine if he has a reasonable explanation for the substantial delay and if his intended appeal has any prospect of success. The only inference this Court could draw is that he has neither a reasonable explanation for the delay nor arguable grounds of appeal with prospect of success. His application is just an abuse of process which is calculated to delay his refoulement process. In the circumstances, there is no need to consider prejudice to the respondent. Accordingly, his application for extension of time is refused.

Conclusion

11.  For the above reasons, the application for extension of time to appeal is refused.