RE SANJAY SARKAR

CAMP 18/2025, [2026] HKCA 952

On appeal from [2024] HKCFI 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 18 OF 2025

(ON AN INTENDED APPEAL FROM HCAL 598/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ To (“the Judge”) dated 27 May 2024[1] (“the Leave Decision”) refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 26 February 2019 (“the Board’s Decision”) dismissing the appeal against the decisions of the Director of Immigration dated 23 August 2016 and 7 July 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out by the Judge in the Leave Decision at [5]-[18], which will not be repeated.

3.  The applicant was absent at the hearing of the leave application.  After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [19]-[24] of the Leave Decision.  

4.  By a decision dated 30 October 2024[2] (“the EoT Decision”), the Judge refused to extend time for the applicant to appeal against the Leave Decision.

The present application for extension of time to appeal

5.  According to the court’s record, a copy of the Leave Decision and a sealed copy of the Judge’s order was sent by post to the applicant at his last known address on 27 May 2024, which was not returned undelivered.

6.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days from the date of the Leave Decision.

7.  Subsequently, the applicant made an application in the court below for an extension of time to appeal against the Leave Decision, which was dismissed by the Judge for the reasons stated in the EoT Decision.

8.  By a Summons filed on 24 January 2025, the applicant renewed his application for an extension of time to appeal before this court.

9.  In the Summons and his supporting affirmation, the applicant contended that the court’s letter enclosing the Leave Decision was lost in the post, and that he only learned of the contents of the Leave Decision “after searching the court file”.  

10.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge written submissions in support of the present application.  He is thus deemed to have abandoned his right to rely on written submissions.  

11.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

12.  The Leave Decision was sent to the last known address of the applicant, but was not returned undelivered.  The inference to be drawn is that the applicant has had notice and knowledge of the Judge’s order and the contents of the Leave Decision in the period within which he was permitted to lodge an appeal.  In any event, it was incumbent upon the applicant to notify the court of a change of address, if any, as soon as possible.  The consequences of failure to do so must lie with him. 

13.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained when he had come to learn of the contents of the Leave Decision. 

14.  There is a delay by the applicant (of more than 2 months) in renewing the application for an extension of time to appeal before this court.  The delay is substantial and thus the present application is liable to be dismissed on this basis alone. However, we havenonetheless proceeded to consider the merits of the intended appeal.

15.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.

17.  In the present case, the Board found on the evidence that the risk of harm to the applicant upon his refoulement was low, and which does not meet the threshold of the required minimum level of severity.  In any event, the Board found that there were suitable options of internal relocation available to the applicant, which would reduce or minimise the risks of harm, if any.  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [14]-[24].  We see no basis to interfere.  

18.  Accordingly, the applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

19.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The Summons filed on 24 January 2025 is accordingly dismissed.