RE CHAUHAN MANISH

CAMP 343/2022

[2023] HKCA 431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 343 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2787 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 6 December 2018, the applicant issued his application for leave for judicial review by Form 86.  On his Form 86, the applicant wrote that the intended judicial review was against the decision of the Director of Immigration (‘the Director’)  dated 15 February 2018 regarding the applicant’s claim for non-refoulement.  In fact, his intended judicial review was against the Board’s decision dated 3 December 2018.

2.  In his decision of 3 August 2021, Deputy High Court Judge K W Lung refused his application for leave to apply for judicial review and dismissed his application. 

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision (by 14 September 2021 as August month is Court holiday).  Being out of time for about ten months, the applicant took out an application on 14 July 2022 requesting an extension of time to appeal.  The Judge on 25 August 2022 rejected the applicant’s application.

4.  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 (by 7 September 2022).  On 9 September 2022, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

5.  Pursuant to the directions of the Registrar of Civil Appeals dated 9 September 2022, the applicant was to lodge written submissions in support of the present summons by 23 September 2022.  He failed to do so, and therefore the applicant is treated as to have abandoned his right to rely on written submissions.

6.  On 13 March 2023, the Appeal’s Registry received a letter from the applicant who indicated that he wished to withdraw his summons in CAMP 343/2022.  He stated that his problem is solved.  He stated that he wishes to go back to his country.

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

2)  Factual background

8.  The applicant is a national of India.  On 7 February 2016, he was arrested by the police for being a suspected illegal immigrant.  On 9 February 2016, he made a non-refoulement claim by written representation.

9.  The basis of the applicant’s claim is that he would be harmed or killed by the family of his girlfriend upon his return to India due to their objection to the love affair between them.

10.  The background facts have been summarized in the decision of the Judge at [5]. 

3)  The Director’s Decision

11.  The Director’s decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

12.  The Board conducted a hearing on 14 September 2018.  The Board dismissed the applicant’s appeal/petition.  The Board was of the view that there was a six-month period that the girlfriend’s brother did nothing to harm the applicant at all.  Neither of the two attacks that the applicant alleged was premeditated.  The incidents do not satisfy the definition of torture under the Immigration Ordinance (Cap. 115). Internal relocation is an option.

5)  Decisions of the Judge

13.  In his decision dated 3 August 2021, the Judge held that there was no valid ground in support of the application for leave for judicial review.  There was no error of law or procedural unfairness. Leave was refused and the application was dismissed. 

14.  In his decision dated 25 August 2022, the Judge held that the filing of the applicant’s summons for appeal was out of time.  He held that the applicant was unable to set out any valid ground to challenge the Board’s decision, nor could he point out any error in the Court’s assessment of his application.  The application for extension of time to appeal was refused.

6)  Legal principles

15.  In considering whether to extend time for appeal / petition, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal / petition; and

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

7)  Analysis

(1)  Length of delay and reasons for the delay

16.  The applicant stated in his supporting affirmation dated 9 September 2022 that he was unrepresented and had no legal advice.  He stated that he had a good ground of appeal which was not considered at the leave to apply for judicial review stage.  He seeks leave to appeal out of time.  The applicant was about ten months late for taking out his application to appeal the Judge’s decision of 3 August 2022.  The delay was serious.  His affirmation does not explain the delay.  We will not accept his explanations.  In any event, we will also examine the merits of the applicant’s intended appeal.

(2)  Prospect of the intended appeal

17.  The applicant’s summons merely stated that his grounds for appeal are referred to in his affirmation.  We have already referred to the content of his affirmation.  It is trite that high standards of fairness do not mean that the applicant is entitled to legal representation at all stages of the proceedings.

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

19.  The Judge has considered all the relevant matters including the merits of the applicant’s case when he refused leave to apply for judicial review and dismissed his application.

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

8)  Disposition

21.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we will, in any event, dismiss the applicant’s summons notwithstanding his request to dismiss the summons.