RE DHAMENDER SINGH

HCAL 847/2018

[2021] HKCFI 3195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 847 OF 2018

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D E C I S I O N

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1.  On 19 March 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal/petition regarding 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 then by a summons issued on 31 August 2021 sought extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 Rule 3(4) of the Rules of High Court, Cap 4A ended on 7 April 2021 after taking into account of the Easter Holiday in early April 2021, and hence he was more than 4 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 The 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 4 months must be considered as very substantial, for which he explained in his supporting affirmation that being an unrepresented litigant he was not aware of the rules regarding the time limit to file his intended appeal until later when he was already out of time to do so.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and as ignorance of the rules can never be accepted as an excuse for their non-compliance, I am not satisfied that the Applicant has provided a good reason for his serious delay.

6.  More importantly, the Applicant did not 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 in his summons, while in his affirmation he just stated that the decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country, an assertion which is plainly incorrect as he did attend an oral hearing for his leave application during which he was able to make representations and submissions regarding his case. 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.  Furthermore, the Applicant recently on 8 October 2021 wrote to the Court expressing his wish to close his case as he wants to return to his home country where the situation is now safe for him to do so.

8.  In the premises, and as I am of the view for the reasons given that it would have been futile to extend time for what appears to be a hopeless appeal, and in view of the Applicant’s latest confirmation of his intention to close his case as it is now safe for him to return to his home country, I accordingly accede to his request and dismiss his summons.