RE MAJOR SINGH

CAMP 268/2023, [2024] HKCA 114

On Appeal From [2023] HKCFI 1298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 268 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 844 OF 2019)

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

1)  Renewed application for extension of time to appeal

1.  On 27 March 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 844/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 7 March 2019 which refused the applicant’s appeal/petition against the Director’s Decision of 13 April 2018.  Deputy High Court Judge KW Lung refused to grant leave for judicial review on 23 May 2023.

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 6 June 2023).  Being out of time for 13 days, the applicant took out an application on 19 June 2023 before the Judge requesting an extension of time to appeal.  The Judge on 1 August 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 2 August 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  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

5.  Briefly stated, the applicant is an Indian national.  According to immigration records, the applicant left India in October 2010 and arrived in Hong Kong on 8 October 2010.  He was refused permission to land and he applied for torture claim.  The applicant’s torture claim was refused in April 2011 and he did not appeal.  In September 2013 the applicant was removed to India.  The applicant then left India for the Mainland in May 2015 and in August 2015 he came into Hong Kong illegally.  In January 2016 the applicant raised a non-refoulement claim.  The applicant alleges that if he returned to India he would be harmed or killed by Joginder Singh and Mohinder Singh due to a land and political dispute.

3)  The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim on 13 April 2018.  The Decision covered Hong Kong Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  The Board dismissed the applicant’s appeal against the Director’s Decision on 7 March 2019 (‘the Board’s Decision’).  In the Board’s Decision, the Board held that the applicant was not a witness of truth.  It held that the applicant was not an active supporter of his political group, and there was nothing to suggest that he and his family would be targeted by members of the opposing party.  Mohinder and Joginder were only supporters and not even members of the opposing party.  The land dispute was a private matter between the parties with no political element involved.  Internal relocation was possible.  

5)  Decisions of the Judge

8.  In his decision dated 23 May 2023, the Judge held that the applicant provided no specific ground for seeking relief.  There was no error of law or procedural unfairness in the Board’s decision.  

9.  In his decision dated 1 August 2023, the Judge stated that the court decision was sent to the applicant on 23 May 2023 to the applicant’s last known address without being returned.  The applicant was unable to raise any valid reason to challenge the Board’s decision.  The application for extension of time for appeal was dismissed.

6)  Legal principles

10.  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

11.  Under Order 53, rule 3(4)  of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge. 

12.  The Form CALL-1 decision was handed down on 23 May 2023.  The deadline for the appeal was 6 June 2023.  The applicant was 13 days late when he filed his extension of time to appeal application on 19 June 2023.  The applicant barely stated that he did not get the judgment of the Court, and he only got to know through his immigration officer, without further explanation. 

(2)  Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, he again stated that he did not get any letter from the High Court.  He provided no valid ground to challenge the Board’s decision.

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

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

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

8)  Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 2 August 2023.