RE NAV RAJ MANANDHAR

HCAL 319/2017

[2019] HKCFI 2906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 319 OF 2017

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D E C I S I O N

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1.  On 13 June 2019 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding none of the grounds put forward by him as reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 27 September 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 27 June 2019, and hence he was late by two months with his intended appeal after discounting the month of August 2019 for the court’s summer vacation. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of two months cannot be regarded as insignificant, for which he explained at the hearing that as he was at that time being held in prison, he had had to get help from the outside to find a lawyer to prepare his application which therefore caused the delay.

5.  Whilst it is true that at the time of the decision the Applicant was being detained and that the decision was indeed sent to him at Stanley Prison, and hence there would be the inevitable inconvenience for him to access to legal assistance, but still that cannot in my view be accepted as a valid or good reason for a delay of two months.

6.  More importantly, nor did he in his summons provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and in his supporting affirmation he merely repeated his reason for his delay with his intended appeal, and complained that he was not given any opportunity to clarify his situation in his home country, as he stated as follows:

“ I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my situation in my country. The decision has heavily relied on the Country of Origin provided by the ImmD. Moreover, it’s not sufficient that was a litigant in person & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be dismissed for want of prosecution as I was in custody of Correction Service Department. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

7.  Whilst it is true that his leave application for judicial review was dealt with in his absence and on papers, it was because he never requested for any oral hearing for his application, and that even at the hearing of his present summons, he never explained what was it that he would have put forward to clarify his situation in his home country had he been given an oral hearing for his leave application, nor was he able to provide any ground for his intended appeal, claiming that he had relied on his lawyer to do so for him in his application.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal. 

8.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.