RE NARASINGHE MUDIYANSELAGE KUSHAN PRIYANKARA

CAMP 432/2021

[2022] HKCA 570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 432 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1652 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)  :

I.  Renewed application for extension of time to appeal

1.  On 16 August 2018, the applicant issued his application for leave 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 26 July 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 16 July 2015 rejecting his non-refoulement claim. 

2.  In his decision of 5 June 2020, 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, the applicant took out an application on 8 September 2020 (late by more than a month, excluding August)  before the Judge requesting an extension of time to appeal.  The Judge on 29 July 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.  On 6 October 2021 (late by around one month), the applicant filed the present summons 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 and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

6.  The applicant is a Sri Lanka national.  He last left Sri Lanka in October 2005 by air to the Mainland where he then entered Hong Kong illegally by boat.  The applicant raised his non-refoulement claim in June 2009 on his fear that he would be harmed or killed by some illegal alcohol manufacturers as the applicant founded a youth organization which campaigned against such illegal activities.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 16 July 2015.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

8.  The Director decided against the applicant’s right to life claim on 4 August 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board on 31 July 2015 which was subsequently treated as an appeal against the Director’s Further Decision as well.  An oral hearing was conducted on 14 May 2018.  The Board dismissed the applicant’s appeal on 26 July 2018 and the Director’s decisions were confirmed.  The Board held that all of the applicant’s alleged misfortunes failed to establish any substantial risk of torture.  The Board held that the applicant was unreliable.  Despite given ample opportunities the applicant did not seek help from the Hong Kong government at the nearest available opportunity.

5)  Decisions of the Judge

10.  In his decision dated 5 June 2020, the Judge held that there was no evidence to show any error in the Board’s decision.  The Board held that the purported facts did not fulfil the conditions for establishing non-refoulement under the statutory provisions and the Convention.   

11.  In his decision dated 29 July 2021, the Judge held that the applicant was unable to show that he has any reasonable prospect of success in his intended appeal.  He adopted the findings of the Board.

6)  Legal principles

12.  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

13.  The applicant was late by one month and 20 days, which is substantial.  Due to the serious delay, the intended appeal must satisfy real prospect of success before an extension of time will be granted : Re Ansar Muhammad [2018] HKCA 227.  The applicant stated in his summons and affirmation that he wanted to challenge the decision, and that he did not receive any letter from the High Court.

(2)  Prospect of the intended appeal

14.  In the applicant’s summons and affirmation, the applicant repeated that he wanted to challenge the decision and that he did not receive the letter from the High Court.  They are the applicant’s bare allegations without particulars or specifics.  

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

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

17.  Since the applicant has not identified any error of law or procedural unfairness in the Judge’s decisions, the intended appeal cannot 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 6 October 2021.