Re Gurvinder Singh

CAMP 103/2019

[2019] HKCA 1183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 103 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 108 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

1.1 On 23 January 2018, the applicant issued his application for leave for judicial review by Form 86.

1.2 The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 2 January 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 29 December 2015 rejecting his non-refoulement claim.  The application was filed within time.

1.3 On 15 January 2019, Deputy High Court Judge K.W. Lung dismissed the applicant’s application.

1.4 Being 14 days out of time, the applicant issued an application on 12 February 2019 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 24 May 2019 rejected the applicant’s application for an extension of time to appeal.

1.5 On 28 May 2019, the applicant by summons made a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paras 3 to 8. 

1.6 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 summons, the affirmation and written submissions filed and lodged, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)Factual background

2. Briefly stated, the applicant is an Indian national.  He entered Hong Kong legally on 22 February 2014 but he eventually overstayed.  He was arrested by the police and was handed over to the Immigration Department for investigation.  He subsequently raised a non-refoulement claim based on his fear that he would be harmed or killed by his uncle because of a land dispute.

3)The Director’s Decision and the Director’s Further Decision

3.1 The Director decided against the applicant’s non-refoulement claim on 29 December 2015.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2 By a Further Decision of the Director dated 27 October 2016, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant, and decided against the applicant.

4)The Board’s Decision

4. The applicant appealed against the Director’s Decision to the Board on 11 January 2016.  The oral hearing was conducted on 22 December 2016.  The Board dismissed the applicant’s appeal on 2 January 2018.  In gist, the Board found that there was no sufficient evidence to support the applicant’s claims under all four heads of risks: BOR 2 risk, BOR 3 risk, torture risk and persecution risk.

5)Decisions of the Judge

5. In his decision dated 15 January 2019, the Judge held that the applicant’s grounds for judicial review were not substantive grounds but purely personal opinions.  In his decision dated 24 May 2019, the Judge held that although he accepted the applicant’s explanation for being late in time to make his application, the applicant did not set out any reasons why his decision was wrong or that he had good reason in support of his intended appeal.  The applicant conceded that he had no other reason in support of his application.  

6)Legal principles

6. In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1) Length of the delay;

(2) Reasons for the delay;

(3) Prospect of the intended appeal;

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

7)Analysis

(1) Length of delay and reasons for the delay

7.1 The applicant was about 14 days late when he filed summons in the court below for extension of time to appeal.  The Judge accepted that the delay was short and had accepted his explanation of the length and reasons for the delay.  We agree with the Judge.  

(2) Prospect of the intended appeal

7.2 In our judgment, the applicant does not meet this threshold.  Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

7.3 In the present summons, the applicant stated that he would like to seek leave to appeal out of time because he did not receive ‘sealed order, CALL-1 and Judgment within 14 days from 24 May 2019’.  They are bare allegations and no particulars were provided by the applicant.

7.4 In his supporting affirmation, the applicant repeated that he did not receive ‘sealed order, CALL-1 and Judgment within 14 days from 24 May 2019’.  In his written submissions of 3 July 2019, the applicant seemed to have confused submissions that normally appear in an extension of time application with submissions that normally appear in a leave to the Court of Final Appeal application.  The written submissions are standard pro forma type of submissions that do not conform with the particulars of the applicant’s case.

7.5 The focus of an appeal in this Court is the correctness of the decision of the Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)Disposition

8. As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 28 May 2019.

The applicant, unrepresented, acting in person