Re Kuldeep Kumar

CAMP 110/2019

[2019] HKCA 1191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 110 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 921 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

1.1On 24 May 2018, the applicant issued his application for leave for judicial review by Form 86.

1.2The applicant’s intended judicial review was against the Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 23 May 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 1 November 2017 rejecting his non-refoulement claim.  The application was filed within time.

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

1.4Being about 20 days out of time, the applicant issued an application on 18 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.

1.5On 3 June 2019, the applicant by summons together with a supporting affirmation issued 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.  The applicant lodged his written submissions on 24 June 2019.

1.6Under 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, affirmation and written submissions, 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 illegally.  He subsequently raised a non-refoulement claim on 15 March 2015 based on his fear that his life would be in danger in the hands of a person called Satpal Singh and his associates belonging to the local Shiromani Alkali Dal party.

3)  The Director’s Decision

3.The Director decided against the applicant’s non-refoulement claim on 1 November 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, BOR Article 2 (right to life) risk, persecution risk, and torture risk.

4)  The Board’s Decision

4.The applicant appealed against the Director’s Decision to the Board.  The oral hearing was conducted on 27 April 2018.  The Board dismissed the applicant’s appeal on 23 May 2018.  In gist, the Board rejected the applicant’s claim upon a finding of a lack of credibility to the applicant’s version of events.

5)  Decision of the Judge

5.In his decision dated 15 January 2019, the Judge agreed with the Board’s findings that the acts alleged are not related to state acquiescence.  He held that the applicant’s own opinions or comments were unsubstantiated with facts and evidence.  In his decision dated 24 May 2019, the Judge held that the applicant did not set out any grounds in his application for extension of time to appeal, therefore the application was dismissed.

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

7.1The applicant was 20 days late when he filed summons in the court below for extension of time to appeal.  The Judge considered that the applicant had provided no grounds of appeal in his application.  

7.2In our view, regardless of the delay, the most important consideration in determining whether to grant an extension is whether the applicant has any prospect in the intended appeal.

(2)  Prospect of the intended appeal

7.3In our judgment, the applicant does not have any prospect of success in his intended appeal.

7.4In the present application, the applicant in his summons and supporting affirmation both stated that he was late due to his lack of knowledge and insufficient resources.  No particulars were provided by the applicant.

7.5In the applicant’s written submissions, most if not all were his own comments and opinions unsubstantiated by facts or evidence.  He essentially pleaded for the court’s kindness to stay in Hong Kong.  There were no merits or grounds that go to the true matters in the applicant’s case in any of his papers.

7.6The 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 extension of time.  Accordingly, we dismiss the applicant’s summons dated 3 June 2019.

The applicant, unrepresented, acting in person