TOGLE JUN ERNIE DIAZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 1890/2019

[2024] HKCFI 2437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1890 OF 2019

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D E C I S I O N

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1.  On 30 January 2024 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding that none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 6 August 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A expired on 13 February 2024, and hence he was more than 5 months late with his intended appeal.    

3.  In considering whether to extend time for appealing against a decision refusing leave to apply 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 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 more than 5 months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that at the material time he was being detained by the Immigration Department at the Tai Tam Gap Correctional Institution and was not released until May 2024, and it was only then when he was able to seek assistance form his friends to make his intended appeal, but by then he was already out of time.     

5.  The court record shows that the decision was sent on the same day of 30 January 2024 to the Applicant’s then detention at Tai Tam Gap Correctional Institution without being returned through undelivered post, and given the availability of welfare officers stationed there to offer assistance during his detention there, I am not satisfied that the Applicant has provided a good or valid justification for his such serious delay.

6.  More importantly, the Applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation, nor was he able to do so at the hearing of his summons other than just repeating his claim as before that his life would still be in danger in his home country.  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.

7.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.