RAJESH KUMAR alias RAJESH KUM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 332 /2021

[2022] HKCA 1761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 332 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2711 OF 2018)

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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.  The applicant is a national of India who lodged his non-refoulement claim on 17 April 2014. He filed a Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chow JA) handed down on 22 April 2022 ([2022] HKCA 519). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dated 10 March 2021 refusing to grant extension of time for the applicant to apply for leave to seek judicial review concerning his non-refoulement claim^[1].

2.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  It was refused by the judge on 28 July 2021^[2].

3.  On 11 August 2021, the applicant filed a renewed application for leave to appeal out of time with the Court of Appeal.  The application was dismissed by the Court of Appeal on 22 April 2022 as he failed to show any prospect of success in his intended appeal.

4.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 23 June 2022 that the applicant shall lodge written submissions on or before 7 July 2022.  It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction.  The applicant did not lodge any written submissions by the prescribed deadline.  Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

5.  In the Notice of Motion filed on 23 June 2022, the applicant stated the following grounds of appeal:

(1)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration (“the Director”).

(2)  The judges were wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director in refusing the application for judicial review.

(3)  There is some error in law in the decision.  The decision maker just relied on the Country of Origin information (“COI”) and previous facts which favour the rejection of the applicant’s claim. 

(4)  The actual situation is different from the COI. The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.

(5)  The judge did not apply the law properly and there is procedural unfairness.

(6)  The applicant’s life is in danger in his country.  He will be killed or harmed if he returns to his country.

Analysis and disposition

6.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

7.  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. 

8.  The applicant was late for more than a month in filing his Notice of Motion.  He explained in his affirmation that he was late as he did not receive the correspondence from the court regarding the dismissal of his appeal and he was unrepresented.  Before handing down the judgment, the court had sent a notice of handing down of judgment on 13 April 2022 notifying the applicant the date of handing down and that the judgment would be uploaded to the Judiciary website within the same day of handing down.  The judgment was also sent to the applicant’s address by post on 22 April 2022.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  Under these circumstances, there is no good ground for the Court of Appeal to grant an extension of time for the applicant to file his Notice of Motion.

9.  In any event, the applicant’s grounds in the present application are not supported by particulars or evidence.  He does not have any reasonably arguable ground to show that the Court of Appeal was wrong in dismissing his application.  Moreover, 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).

10.  For the above reasons, we dismiss the Notice of Motion filed on 23 June 2022 for leave to appeal to the Court of Final Appeal.

[1] [2021] HKCFI 554

[2] [2021] HKCFI 2085