Re Hardeep Kumar

CAMP 105/2023, [2024] HKCA 1060

On appeal from [2022] HKCFI 3833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 105 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 2591 OF 2018)

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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 30 December 2022 refusing 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 12 November 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 26 March 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.The applicant is a national of India. He entered Hong Kong as a visitor on 27 January 2015, but he overstayed and he surrendered to the Immigration Department on 29 December 2015.  Thereafter, he lodged a non-refoulement claim by way of a written representation on 7 June 2016.

3.The applicant’s claim was based on a fear of being harmed or killed by the Singh family due to a land dispute.  The details of the applicant’s claim have been summarised by the Board at [49] to [86] of the Board’s Decision.

4.By a Notice of Decision dated 26 March 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

5.The applicant appealed to the Board.  After a hearing on 31 August 2018, the Board dismissed the appeal on 12 November 2018 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  In dismissing his appeal, the Board found on the facts and evidence that the alleged risk of harm to the applicant, should he return to India, was unsubstantiated.

The Judge’s decision

6.The applicant filed a Form 86 on 19 November 2018 seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In the applicant’s supporting affirmation, he contended that the Director disregarded “the dangers and threats” he would allegedly face should he be deported.  

7.On 14 November 2022, the applicant filed an affirmation with the court (“the Withdrawal Application”), applying to “withdraw judicial review HCAL 2591/2018”.  He deposed:

“… now I want to go back to my home country. All my problem now finished… My mother is very sick. As soon as possible I want to return to go home now. I want to withdrawa my case please.”

8.Taking into consideration the circumstances of the case, as well as the applicant’s ex parte Withdrawal Application, the Judge by his decision in the CALL-1 Form[5] dated 30 December 2022 dismissed the applicant’s application for leave to apply for judicial review.  His reasons were stated at [2] to [5] of the CALL-1 Form as follows:

“2. The applicant filed Form 86 on 19 November 2018 for application for leave to apply for judicial review of the Board’s Decision.

3. The applicant filed an affirmation on 14 November 2022 stating that he wanted to withdraw his application because his problem is solved in his country. He wants to go back my country as his mother is very sick.

4. In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

‘(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.’

5.  The application is therefore dismissed.”

The present application for extension of time to appeal

9.The applicant’s last known address, as informed by him on 27 April 2022, was at No.40 Hop Choi Street, Yuen Long (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 30 December 2022, which was not returned undelivered.

10.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 of the Judge’s decision dated 30 December 2022.

11.The applicant thereafter took out a summons in the Court of First Instance on 13 February 2023 seeking extension of time to appeal, in which his address was also stated to be the Address.  In the summons and his supporting affirmation filed on the same date, he claimed that he did not receive the CALL-1 Form “within reasonable period of time” and that he should be given a reasonable opportunity to present his case.

12.The applicant’s application to appeal out of time was dismissed by the Judge on 9 March 2023[6].

13.By a summons filed on 16 March 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and supporting affirmation filed on the same date, the applicant alleged that he did not receive the CALL-1 Form in time as it was lost in the post.

14.In his written submissions lodged on 29 March 2023, the applicant referred to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, 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.

Discussion

15.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.

16.The applicant has failed to provide the date on which he had learned of the Judge’s decision dated 30 December 2022.  Further, the letter from the court sent to him at the Address was not returned undelivered, and the inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period in which he was permitted to lodge an appeal.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

17.We have nonetheless proceeded to consider the merits of the intended appeal.

18.The manner in which the applicant has prosecuted these proceedings is highly regrettable.

19.We note that despite the applicant in the Withdrawal Application claiming that all alleged problems in India had been resolved and that his intention was to return as soon as possible, for reasons that are not explained, he is now seeking to appeal against the Judge’s decision.

20.Furthermore, the applicant, since the filing of the summons before this court, has by a letter dated 26 April 2023 applied again for withdrawal as he again says that he wishes to return to India as soon as possible (“the 2^nd Withdrawal Application”).

21.As is clear from the procedural history set out above, the applicant’s application for leave to apply for judicial review was dismissed upon his own application for withdrawal of the same.  It is clearly an abuse of the process of the court for the applicant to complain of, and seek to appeal against, the Judge’s dismissal of the very application he himself had applied to withdraw.  The intended appeal is thus in our view hopeless and wholly devoid of merit.  In addition, having regard to the 2^nd Withdrawal Application, there is no reason why the present application should not be dismissed.

22.In any event, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

23.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.

24.Finally, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his appeal by this court or in processing of his non-refoulement claim.

25.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 16 March 2023 is accordingly dismissed.

26.On 13 September 2024, the court was notified by the Director that the applicant had been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he use his best endeavours to forward them to the applicant.

The applicant acting in person