RE YADVINDER SINGH

HCAL 1817/2018

[2021] HKCFI 642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1817 OF 2018

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D E C I S I O N

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The application

1.  The applicant has taken out a summons for leave to appeal out of time against the order dated 10 July 2020 refusing leave to him to apply for judicial review and for leave to advance a new sole ground of appeal.

2.  The applicant is an illegal immigrant as he overstayed and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision dated 16 August 2018 (“the Board’s Decision”), rejected his appeal and affirmed the Director’s decision.

3.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court, the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision. He did not appear before the Court. By Order dated 10 July 2020 (“the Court’s decision”), the Court refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

4.  The applicant intends to appeal to the Court of Appeal against the Court’s decision. However, he is out of time under Order 53, rule 3(4) of the Rules of the High Court (“RHC”).

5.  He set out his grounds in support of this application as follows:

(1)     the court made the decision without allowing him an opportunity to clarify his case and situation in his country;

(2)     he did not receive the court’s decision;

(3)     he was not legally represented and he did not know the 14-day limit for appeal.

Discussion

6.  By virtue of Order 32, rule 11A(1)(a) of the RHC, I decide to deal with this application without an oral hearing.

7.  The applicant did not ask for a hearing himself in the first place. This Court invited him to court to hear him. He was absent without prior notice to this Court. The Court therefore proceeded to consider his case. There is nothing amiss if he did not attend court because he did not ask for a hearing himself. If he had things to clarify, he could have asked for a hearing. Up till now, he has not been able to say what issue he would like to clarify for the court. Ground (1) fails.

8.  The Court’s Form Call-1 was sent to the applicant’s last known address. Pursuant to Order 65, rule 5 (2A) of the RHC, it is deemed to have served on the applicant on 12 July 2020, two days after the date of the letter in the ordinary course of the post, as it was not returned unserved.

9.  The fact that he did not have legal advice on the time for his appeal will not affect the time within which he has to file his appeal.

10.  His grounds (2) and (3) will not assist him. He is out of time for his appeal.

11.  In Re Adumekwe Rowland Ejike [2019] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued and the applicant has to identify any error on the part of the Judge in refusing to grant him leave to apply for judicial review [23].

12.  The Court had in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant’s grounds in support of his application are that if he returns to India, he would be harmed or killed by Mr. Sandeep Singh and his subordinates because his brother had assisted Mr. Sukhvir Singh to kill Sandeep’s brother, who refused to convey a piece of land to Sukhvir, his son. The Board had given its reasons for its conclusion. It held that the applicant had not proved the material facts and even if his evidence were accepted, given the manner in which he was attacked, he had not proved that the fear risk is likely to materialize if he returned to India. The Board also held that relocation was an option open to him.

13.  The Court had considered the grounds for his application for leave to apply for judicial review and dealt with them in its decision.

14.  The Court had considered the Board’s Decision and found that it was without fault [13].

15.  In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision. I refuse to extend time for his appeal. As such, there is no point of granting leave to the applicant to advance new ground of appeal as he has not been able to state the substance of the new ground. Accordingly, I dismiss his application.