DALJIT BOPARAI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 501/2019

[2020] HKCA 823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 501 OF 2019

(ON APPEAL FROM HCAL NO 615 OF 2017)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Barma JA) handed down on 28 May 2020 ([2020] HKCA 362). The Court of Appeal dismissed his appeal against the decision of Yau J on 28 June 2019 ([2019] HKCFI 1653) refusing leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 8 September 2020 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submission on 15 September 2020.  Having considered his submission, we consider it appropriate to determine this application on paper and will proceed to do so.

3.  The applicant is a national of India of 43 years old and he came to Hong Kong on 22 October 2007.  He raised a torture claim on 30 November 2007 on the basis that if he were to be returned to India he would be harmed or killed by his paternal uncle who wanted to take the land which he inherited from his father.  His torture claim was rejected by the Director of Immigration (“the Director”) by a Notice of Decision dated 23 January 2014.  He lodged a non-refoulement claim on 28 March 2014 which was withdrawn in April 2016.  His applications to reopen his non-refoulement claim were rejected by the Director on 29 September 2016 and 6 October 2016.  His appeal against the Director’s decision of 6 October 2016 was dismissed by the Torture Claims Appeal Board(“the Board”) on 25 August 2017.

4.  He filed a Form 86 on 12 September 2017 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by Yau J on 28 June 2019.

5.  The applicant filed a summons to seek leave to appeal against the judge’s decision out of time.  The judge granted him leave on 25 October 2019 as the judge considered that the delay in lodging a notice of appeal was through no fault of the applicant. 

6.  His appeal was scheduled to be heard by the Court of Appeal on 10 March 2020 but it was adjourned to 26 May 2020 due to the general adjournment of court proceedings for public health reasons. 

7.  The new hearing date was however vacated as the applicant failed to lodge his skeleton argument by the extended deadline under the direction of Kwan VP on 17 April 2020.  The Court of Appeal dealt with his appeal on paper and dismissed it on 28 May 2020.  The applicant filed a Notice of Motion on 4 September 2020 for leave to appeal to the Court of Final Appeal.  He was out of time in doing so.

The grounds of appeal

8.  The applicant’s grounds of appeal as stated in his written submission may be summarized as follows:

(1)  His life will become worse if he returns to his country.  People like him are living under threat as the enemies are so strong.

(2)  He does not have much strength to fight with the police and other law making authorities.  It is very difficult to get justice in that corrupt environment.  Torture and deaths of innocent people in police custody are so common.

(3)  He was not satisfied with the Board’s decision as they ignored so many things which are related to his case.  There are a lot of differences between what they thought and the actual situation in his home country.  The decision was not transparent.

Analysis

9.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

10.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.  In the present application, the applicant was late for more than two months.  Good grounds have to be shown by him for the court to grant an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

12.  The applicant explained in his affirmation that his delay was due to “lack of knowledge and insufficient sources”.  This explanation would not justify the delay of more than two months in filing the Notice of Motion.  

13.  In any event, the applicant has not shown any or any sufficient merits in his intended application for leave to appeal to the Court of Final Appeal.  His grounds of appeal are bare assertions without evidence in support.  He has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

14.  For the above reasons, we decline to grant an extension of time to the applicant to file an application for leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 4 September 2020.