RE BINDER SINGH

CAMP 28/2021

[2021] HKCA 1097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 582 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

1.1.   On 9 April 2018, the applicant issued his application for leave for judicial review by Form 86.

1.2.   The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 13 March 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 28 March 2017 rejecting his non-refoulement claim.  The application was brought within time,

1.3.   On 4 August 2020, Deputy High Court Judge Bruno Chan dismissed the applicant’s application.  

1.4.   The applicant took out an application on 20 August 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 16 September 2020 gave the applicant an extension of time to appeal but he failed to file a notice of appeal within the time given.  

1.5.   On 25 January 2021, the applicant by summons together with a supporting affirmation made application to this Court for another extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraphs 3 to 8.  He lodged his written submissions on 26 March 2021 which was two days late against the directions of the Registrar of Civil Appeals as contained in a letter from the High Court dated 11 March 2021.

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

2)  Factual background

2.   Briefly stated, the applicant is a national of India.  He came into Hong Kong on 24 June 2015 on the strength of his passport but he overstayed.  He raised a non‑refoulement claim back on 5 December 2014 based on his fear that he would be harmed or killed by one Jeet Singh and his son Tarlochan Singh for having a land dispute with them.

3)  The Director’s Decision

3.   The Director decided against the applicant’s non‑refoulement claim on 28 March 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, Bill of Rights (‘BOR’) Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.   The applicant appealed against the Director’s Decision to the Board on 6 April 2017.  An oral hearing was conducted on 29 December 2017 for the Board’s assessment of all applicable grounds.  In gist, the Board was not convinced of the applicant’s fear that he would be harmed or killed by Jeet Singh and his son.  Throughout the relevant period there was no real drastic steps taken by the both of them in carrying out the alleged threats to kill.  The Board did not believe that if the applicant’s mental suffering was so severe as claimed he would not have sought medical attention.  The applicant failed to prove his case on all applicable grounds.  The Board dismissed the applicant’s appeal and the Director’s Decision was confirmed.

5)  Decisions of the Judge

5.1.   In his decision dated 4 August 2020, the Judge held that the applicant provided no grounds in his Form 86 nor in his supporting affirmation.  No error of the Board was shown.

5.2.   In his decision dated 16 September 2020, the Judge held that the applicant’s delay was insignificant.  He granted the applicant extension of time to file his appeal by 30 September 2020. The applicant did not file his appeal within the extended time.  

6)  Legal principles

6.   In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)   Length of the delay;

(2)   Reasons for the delay;

(3)   Prospect of the intended appeal;

(4)   Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1.   The Judge was incorrect to hold that the applicant was late by two days in his decision dated 16 September 2020. Order 3, rule 3 of the Rules of High Court provides that the period of August is Court vacation and time does not run in that month. However, by the time of the hearing on 16 September 2020, he was out of time so an extension of time to appeal was required.  He, however, did not lodge his appeal within the extended period granted by the Judge and it was only on 25 January 2021 that the applicant filed a summons to the Court of Appeal to apply for another extension of time to appeal.  We will, however, focus our attention on the prospects of success of the applicant’s intended appeal.

(2)  Prospect of the intended appeal

7.2.   In our judgment, the applicant does not have any prospect of success in his intended appeal.

7.3.   The applicant in his summons stated that he was not satisfied with the Judge’s decision.  No particulars or explanations were provided.

7.4.   In the applicant’s supporting affirmation, he simply stated that he did not agree with the Judge’s decision.  No particulars were provided.

7.5.   In the applicant’s written submissions, he repeated the factual background.  He stated that the decisions of the Director and the Board were incorrect.  He complained that he did not receive any letter from the High Court.  Again, no particulars were provided.

7.6.   The focus of an appeal in this Court is the correctness of the decision of the Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

8.   As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 25 January 2021.