RE BACHITAR SINGH

CAMP 117/2019

[2019] HKCA 1212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 117 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 999 OF 2017)

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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 1 December 2017, the applicant issued his application for leave for judicial review by Form 86.

1.2 The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 4 October 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 24 April 2015 rejecting his non-refoulement claim. The application was filed within time.

1.3 On 11 December 2018, Campbell-Moffat J dismissed the applicant’s application.

1.4 The applicant was entitled to appeal against the Judge’s refusal as of right. But if he did not do so within the 14-day period specified by law, he had to obtain an order for extension of time to appeal. Being less than two months out of time, the applicant issued an application on 19 February 2019 before the Judge requesting essentially for an extension of time to appeal. The Judge on 24 April 2019 rejected the applicant’s application for an extension of time to appeal.  By a summons dated 6 June 2019 the applicant applied for an order that :

‘ I want to appeal against the decision of judicial acriew I was late due lack of knowledge and insufficient sources. Please allow me for further process’

1.5 This is essentially in the nature of a renewed application for 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 paras 3 to 8.

1.6 Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application like the present one without an oral hearing. Having considered the summons, affirmation and written submissions filed, 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 an Indian national. He arrived in Hong Kong on 12 February 2015 but was refused permission to land and was detained at Castle Peak Bay Immigration Centre. He subsequently raised a non-refoulement claim based on his fear that his life would be in danger from one Sulakhan who lived in his village, and another unknown man.

3)  The Director’s Decision and the Director’s Further Decision

3.1 The Director decided against the applicant’s non-refoulement claim on 24 April 2015. The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2 By a Further Decision of the Director dated 3 November 2016, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant, and decided against the applicant.

4)  The Board’s Decision

4. The applicant appealed against the Director’s Decision to the Board. The oral hearing was conducted on 13 March 2017 and 18 September 2017. The Board dismissed the applicant’s appeal on 4 October 2017. In gist, the Board rejected the applicant’s claim upon analysis of all heads of claims: BOR 2 and 3 risk, torture risk, and persecution risk.

5)  Decisions of the Judge

5.1 The applicant did not request an oral hearing for the application for leave to apply for judicial review. The Judge held that there were no grounds for review. No error of law or procedure was found.

5.2 In his decision dated 24 April 2019, the Judge held that the applicant admitted that it was his own fault for not doing anything between February 2018 and February 2019 to progress his judicial review matter. In any event, the Judge found no merit in the applicant’s extension application.

6)  Legal principles

6.1 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;

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

6.2 Likewise the same consideration will apply to the present application for extension of time. We will consider the merits of his intended appeal against the Judge’s decision of 11 December 2018 having regard to the above consideration.

7)  Analysis

(1) Length of delay and reasons for the delay

7.1 The applicant was more than one and a half months late when he filed summons in the court below for extension of time to appeal. It was a long delay. The Judge focused her consideration on the lack of merits in the applicant’s application.

(2) Prospect of the intended appeal

7.2 In our judgment, the applicant does not meet that threshold. Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

7.3 In the present application, the applicant stated in his summons that he was late due to his lack of knowledge. The applicant’s affirmation repeated that statement. No particulars were provided by the applicant.

7.4 In his written submission, he essentially pleaded for the court’s kindness to stay in Hong Kong. We are of the view that the most important consideration in an extension of time to appeal application is whether there are merits in the intended appeal. There are no merits in the applicant’s case. He has not identified any error of law or procedural unfairness in the decision of the Judge.

8)  Disposition

8. As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we will dismiss the applicant’s summons dated 6 June 2019.