RE CHAMKAUR SINGH

CAMP 58/2024, [2024] HKCA 457

On an intended appeal from [2023] HKCFI 3183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 58 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 1196 OF 2020)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 13 December 2023 ([2023] HKCFI 3183) which dismissed his application for leave to apply for judicial review.

2.  The applicant has filed an affirmation to support his application.  Despite directions given by the Registrar of Civil Appeal, he has not lodged any written submission.

3.  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 papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 4 June 2020 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 20 March 2018 which rejected his non-refoulement claim.

5.  The applicant is a national of India aged 36.  He entered Hong Kong illegally and was arrested by the police on 3 August 2015.  He later raised a non-refoulement claim based on fear of being harmed or killed by a person named Lakhwinda because of a property dispute.  The details of the applicant’s claim were set out in the decision of the Board at [25] to [47].  We will not repeat them.

6.  The Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk^[4]grounds.

7.  The applicant appealed the Director’s decisions to the Board.  The appeal was heard on 21 January 2020, during which the applicant gave evidence and answered questions from the Board.  By its decision given on 4 June 2020, the Board dismissed the appeal.     

8.  On 16 June 2020, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant did not provide any grounds to support the application. 

9.  By another affirmation filed on 29 September 2023, the applicant requested to cancel his judicial review application because he wanted to go back to his country. 

10.  The Judge by a Form CALL-1 dated 13 December 2023 dismissed the application for leave to apply for judicial review on the basis that there was nothing outstanding in the case and applying this Court’s decision in Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at [19].

11.  By a summons filed on 17 January 2024, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on the papers.  By his decision handed down on 26 March 2024 ([2024] HKCFI 719), he refused to extend the time to appeal on the grounds that: (1) as the order had been sealed he was officio functus and did not have jurisdiction to deal with the application; and (2) the applicant had not raised any reason in support of his application (at [9] and [10]). 

12.  On 28 March 2024, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time was granted. 

14.  The applicant was more than three weeks late, which is a significant delay.  The applicant explained in his supporting affirmation filed in this application that he did not receive any letter from the court.  The court record shows that the Form CALL-1 and the sealed order were sent to the address provided by the applicant in the Form 86, and they had not been returned by the Post Office.  This is also the address stated in the present summons and supporting affirmation.  In the circumstances, we do not accept that the applicant has satisfactorily explained the delay.  The applicant therefore has to show that his intended appeal has a real prospect of success, to which we now turn. 

15.  In the present summons and supporting affirmation, the applicant only stated that he wanted to appeal but has not provided any ground in support of his intended appeal.  In the summons and affirmation for extension of time to appeal filed in the court below, the applicant asked to re-open his case because his problem was not yet solved.  He, however, did not give any details or elaborations. 

16.  Order 32 rule 6 of the Rules of the High Court provides that the Court may set aside an order made ex parte.  In taking the view that he has no jurisdiction to deal with the applicant’s application for time extension, the Judge referred to the judgment of this Court (Barma and Au JJA) in Nguyen Quang Hien & Others v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office & Director of Immigration [2022] HKCA 1704 at [24].  However, an important fact in the Nguyen Quang Hien case is that the first instance judge had already considered and dismissed the application for leave to apply for judicial review on merits before the order was sealed.  It is on this basis that this Court took the view that the first instance judge no longer had jurisdiction to make the consolidation order in that case (see also [25] of the judgment).  In the present case, the Judge had not considered or dealt with the merits of the applicant’s application. He dismissed the application because of the applicant’s request to cancel his application.  The judge’s view that he was officio functus and had no jurisdiction to deal with the time extension application is accordingly misplaced.

17.  That notwithstanding, in seeking to re-open his application for leave to appeal, it is incumbent upon the applicant to show good cause for doing so.  The applicant’s mere assertion that his problem is not yet solved is clearly insufficient to enable the court to exercise its power to re-consider his application for leave to apply for judicial review.  For this reason, we are of the view that the applicant has failed to show merits in his intended appeal.  

18.  This being the case, it will be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 28 March 2024.