Re Harpreet Singh

CAMP 437/2021

[2022] HKCA 53

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 437 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1159/2019)

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Before: Hon Chu JA and Barma JA in Court

Date of Judgment:  11 January 2022

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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 KW Lung (“the judge”) dated 6 July 2020 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 25 March 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 March 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India.  He surrendered to the Immigration Department on 1 February 2016, having illegally entered Hong Kong on 30 January 2016.  He lodged a non-refoulement claim on 21 December 2016.

3.In gist, the applicant’s claim was based on a fear of death or serious harm threatened by his uncle by reason of a land dispute in India.

4.By a Notice of Decision dated 20 March 2018, the Director decided against the applicant’s claim.  This decision covered the torture risk[1], the persecution risk[2], the “BOR 2” risk[3] and the “BOR 3” risk[4].

5.The applicant appealed to the Board.  After a hearing on 1 November 2018, the Board dismissed the appeal on 25 March 2019.  The Board’s decision covered all four grounds for non-refoulement protection.

The judge’s decision

6.The applicant filed a Form 86 on 2 May 2019 with a supporting affirmation, which set out his grounds of judicial review, including inter alia, failure by the Director to take into consideration relevant factors in reaching his decision.

7.On 12 May 2020, in a letter from the applicant to the court, he stated:

“[I] am requesting you to close my case, because now I can go to India. Before I can’t go back because of some problems, but now all problems solve. I am safe in India now. So please if can close my case in recently.”

8.The judge gave the following reasons in his decision dated 6 July 2020 in refusing leave to apply for judicial review (at [6] to [9] of the CALL-1 Form[5]):

“6. The applicant filed Form 86 on 2 May 2019 for leave to apply for judicial review of the Board’s Decision.

7. The applicant lodged a letter which was received on 12 May 2020 with the Court seeking to withdraw his application because his problems had been solved.

8. It is clear that the applicant has no intention of proceeding with his application. As such, his application should be dismissed.

9. Accordingly, I accede to the applicant’s request and dismiss his application.”

The present application for extension of time to appeal

9.Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal, but he failed to do so.

10.In the applicant’s letter received by the court on 23 July 2020, he requested that the court “open again” his “judicial review case” because apparently he could no longer return to India.

11.On 11 August 2020, the applicant took out a summons in the Court of First Instance seeking “leave to appeal” (which the judge rightly treated as an extension of time to appeal) against the judge’s order dated 6 July 2020.

12.By an order dated 4 August 2021, the judge refused to grant leave for the applicant to appeal out of time. 

13.By a summons filed on 7 October 2021, the applicant renewed his application for extension of time to appeal before this court.  In the supporting affirmation dated the same, the applicant deposed:

“Previously, I have withdrawn my leave application for Judicial Review by writing a letter to the High Court by thinking that my problems were solved. But I was wrong. My life is still in danger in my country. The decision made by the High Court K.W. Lung has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. I would like to appeal out of time as I didn’t had neither the appropriate means nor I had a private lawyer for Legal Advice.”

14.In breach of the directions of the Registrar of Civil Appeals dated 7 October 2021, the applicant filed his written submissions late, on 25 October 2021.  In light of the short delay (of 3 days), this court has proceeded to consider the applicant’s submissions, which merely referred to Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

15.However, in another turn of events, in a letter dated 23 November 2021, the applicant stated:

“I would like to request you about my CAMP No. 437/21. I wish to go back my home country my problem is solved already. Please help me to close my case I don’t waited for your answer.”

16.In a further letter received by the court on 7 December 2021, the applicant again stated that he wished to return to his home country and asked this court to withdraw his case.

Discussion

17.Having considered the papers and the applicant’s written submissions, 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.

18.The applicant has indicated that he no longer wishes to pursue the present application for extension of time to appeal.  We see no reason why the application should not be dismissed, in light of the applicant’s most recent stance.

19.Further, we hold that the manner in which the applicant has conducted these proceedings amounts to an abuse of process of the court, and his application is also liable to be dismissed on this basis.

20.For the sake of completeness, we have nonetheless proceeded to consider the merits of the intended appeal.

21.Regarding the well-established legal principles cited in the applicant’s written submissions, there was no attempt by him to elaborate on whether and, if so, how they had not been honoured in the processing of his non-refoulement claim.

22.The applicant has failed to identify any arguable error of law by the judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.  As a matter of principle, no extension of time should be granted in respect of hopeless appeals.

23.In the circumstances, the summons filed on 7 October 2021 is accordingly dismissed.

The applicant acting in person