RE JATINDER KUMAR

CAMP 149/2021

[2023] HKCA 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 149 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2404 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  This court handed down judgment on 18 March 2022 ([2022] HKCA 399) dismissing the applicant’s application to extend time to appeal against an order of DHCJ K.W. Lung given on 27 July 2020 in which he refused the applicant’s application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 20 July 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The last day for filing the Notice of Motion expired on 15 April 2022.

4.  However, under sections 24(5) and 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.  In the present case, the applicant was late by 3 months which is substantial.  He explained that he did not receive this court’s judgment within time.  The court file showed that even though the court’s judgment was sent to the address provided by the applicant (which is the same as that shown in the Notice of Motion), the letter was returned as the address was incomplete / incorrect.  It is the duty of a litigant to give the court an address to which correspondence can reach him in a timely manner; the consequence of any delay or failure of delivery occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant, see: Re Hasmi Rizwan Imran[2018] HKCA 439 at [15].

6.  Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal.  He advanced the following in the Notice of Motion:

“I would like to infomr (sic) the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COI Information. The Officer and cours (sic) prefers to ignore the overwheming (sic) of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary (sic) a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  In compliance with the directions of the Registrar of Civil Appeals given on 20 July 2022, the applicant lodged his written submissions on 3 August 2022.  This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In his written submissions, he quoted passages from ST v Director of Immigration^[1][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on high standards of fairness.  He submitted that high standards of fairness applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  However, he did not explain or elaborate how these materials setting out general principles assist his intended appeal from our judgment.

9.  Section 22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10.  Having regard to the judgment of this court, the applicant’s intended appeal has no merit at all. No question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 20 July 2022 is dismissed.

CAMP 149/2021

[2022] HKCA 399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 149 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2404 OF 2018)

______________________

______________________

___________________

J U D G M E N T

___________________

Hon Yuen JA (giving the Judgment of the Court):

1.  On 27 July 2020, DHCJ K.W. Lung (“the Judge”) refused to give the applicant leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 7 January 2021 for extension of time to appeal.  That summons was dismissed by the Judge on 13 April 2021. 

3.  On 10 May 2021, the applicant filed his summons in CAMP 149/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Pursuant to the directions made by the Registrar of Civil Appeals on 10 June 2021, the applicant should lodge with the court his written submissions in support of the Summons on or before 24 June 2021.  He failed to do so.  The Registrar further directed that in the event the applicant fails to lodge his written submissions, he shall be deemed to have abandoned his right to rely on written submissions, and the application will be disposed of on paper on available materials.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is an Indian national. He came to Hong Kong on 20 February 2014 as a visitor and was permitted to stay until 6 March 2014.  He overstayed and was arrested by police on 28 March 2014. On 30 March 2014, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by a group of murderers (“the murderers”) who murdered his ex-girlfriend Gagandeep Kaur and her family as he was the only eye witness to the murder. The factual background of this case was succinctly summarised by the Judge at [5] of the JR Decision ([2020] HKCFI 1656).

7.  By a Notice of Decision dated 6 April 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 21 September 2018.  By its decision dated 19 October 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [59] to [87], the Board found that the applicant’s evidence was vague, unconvincing and inconsistent.  The Board did not accept that the murder victims were his ex-girlfriend and her family, nor did it accept that he had witnessed the incident, and found that he had manufactured a story based on news articles about the murder incident for the purpose of his non-refoulement claim.  As such, the Board did not accept that he would face a real risk of harm upon his return to India and rejected his claim on all applicable grounds.

Application for leave to start judicial review

9.  On 30 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he did not provide any proper grounds of relief and merely requested the court to reconsider his case.

The JR Decision

10.  The applicant attended an oral hearing on 4 September 2019.  After due consideration of the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [13] - [15] of the JR Decision:

“13.  The applicant appeared before me.  He confirmed that he was able to express freely before the immigration officer and the Adjudicator.

14.  I put the Board’s findings to him.  He said that he understood.  He complained that the Adjudicator did not believe him.  But he was unable to identify any reasons for his complaint.

15.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant was late in filing a notice of appeal against the JR Decision.  He filed a summons in the Court of First Instance on 7 January 2021 for extension of time to appeal.  That was dismissed by the Judge on 13 April 2021.  Hence, the Summons to this court. 

Discussion

12.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1), the applicant was late by 4 months between the JR Decision and the summons filed in the Court of First Instance.  His delay was significant. 

13.  As for (2), the reasons for the delay, the applicant alleged in his supporting affirmation dated 7 January 2021 that he did not receive the court order and the JR Decision “within reasonable period of time allowing the applicant to appeal within time”.  The applicant did not provide any detailed reason and/or supporting evidence to explain why he did not receive the JR Decision.  The court file showed that the JR Decision was sent to the applicant’s updated address[5] on 27 July 2020 and it was not returned undelivered. In the circumstances, we do not accept the applicant’s alleged excuse.

14.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by the Judge.  In his application for extension of time before the Judge, he did not raise any proper ground of appeal against the JR Decision.  It is plainly right for the Judge to conclude that there is no realistic prospect of success in the intended appeal and to refuse leave. 

15.  In his summons and supporting affirmation before this Court, he also failed to provide any ground to reverse the JR Decision.  He merely repeated his alleged reason for delay, i.e. that he did not receive the JR Decision within 14 days from the date of judgment.

16.  It is clear from the Board’s decision that the applicant’s claim was rejected on the issue of credibility as his evidence was vague and inconsistent, and the Board found that he had manufactured a story to provide a basis for his claim.  It was perfectly open to the Board to reach its factual findings and conclusions, and the court would only intervene if there were valid public law grounds.  We do not see any in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

17.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 10 May 2021.