RE GURPREET SINGH

CAMP 312/2021

[2021] HKCA 2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 312 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2680 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 26 November 2018, the applicant issued his application for leave to apply for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 20 November 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 23 March 2018 rejecting his non-refoulement claim.  The application was brought within time.

2.  In his decision of 6 May 2021, Deputy High Court Judge K.W. Lung refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time by one day, the applicant took out an application on 21 May 2021 before the Judge requesting an extension of time to appeal.  The Judge on 2 August 2021 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 (i.e. by 7 September 2021 given that August is summer vacation). On 3 August 2021, the applicant filed the present summons within time to make a further application to this Court for extension of time to appeal. 

5.  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

6.  Briefly stated, the applicant is an Indian national.  He last entered Hong Kong as a visitor in late June 2014 but overstayed.  The applicant raised his non‑refoulement claim in mid May 2015 on his fear that he would be harmed or killed by his uncle Sahib if the applicant does not transfer land which was given by his father to him.

3)  The Director’s Decision

7.  The Director decided against the applicant’s non‑refoulement claim on 23 March 2018.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 4 April 2018.  An oral hearing was conducted on 31 August 2018.  The Board dismissed the applicant’s appeal on 20 November 2018 and the Director’s Decision was confirmed.  The Board held that there was no state acquiescence.  The country of origin information relied on by the Director was reliable.  There was no evidence to show that the government of India was unwilling to help the applicant for a Convention reason.  The risk of torture was not foreseeable, real and personal.  There was nothing to show any risk to life.  Minimum level of severity was not attained.  The fear he has of reprisals was not based on reasons of race or religion.

5)  Decisions of the Judge

9.  In his decision dated 6 May 2021, the Judge held that the applicant only attached the Board’s decision in his application.  He held that there was no error of law in the Board’s decision.    

10.  In his decision dated 2 August 2021, the Judge held that the applicant had not been able to say in what respect the Board had erred.  

6)  Legal principles

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

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

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

7)  Analysis

(1)  Length of delay and reasons for the delay

12.  The applicant was only one day late.  The lateness was insignificant.  

(2)  Prospect of the intended appeal

13.  In the applicant’s summons and affirmation for a renewed application for extension of time to appeal, the applicant stated that his life is in danger and the same level of threat still exists. 

14.  In his written submissions, the applicant provided factual background matters of his case.  The lack of merits of his case is clearly seen as he stated in his written submissions that his fear of returning was because of the fear of domestic and sexual abuse.  Domestic and sexual abuse was never a part of the applicant’s claim.  In any event, his written submissions failed to show any error in the Board’s decision.

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

16.  The Deputy Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review and extension of time to apply for judicial review. 

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

8)  Disposition

18.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 3 August 2021.