RE SARABJIT

HCAL 625/2018

[2021] HKCFI 3373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 625 OF 2018

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D E C I S I O N

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1.  On 7 September 2020 I refused to extend time to the late application of the Applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal against the Director’s decision in refusing to allow him to re-open his non-refoulement claim due to his failure to return a completed Non-refoulement Claim Form (“NCF”) within the required period upon finding that there was no good reason for his serious delay, 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 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 19 July 2021 seeks 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 the High Court, Cap 4A ended on 21 September 2020, and hence he was almost 10 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 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 almost 10 months must be considered as extremely inordinate, for which he did not provide any explanation in his summons, and in his supporting affirmation he merely stated as follows:

“I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the High Court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that was a litigant in person & unrepresented, thereby making me unaware of the rules regarding 14-days time limit. I humbly request the Court to allow my appeal out of time and give a chance to explain.”

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 or reason for their non-compliance, I am not satisfied that the Applicant has provided any good reason for his delay.

6.  More importantly, the Applicant has 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 his affirmation, while his complaint of not being given an opportunity to clarify his case which I understand to mean that his leave application was determined without any oral hearing, the fact is that the Applicant never requested for one, and that even up to now he is still unable to show why he failed to submit his completed NCF as required for his claim. 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 29 October 2021 wrote to the Court to request to withdraw his application as he wishes to return to his home country as soon as possible.

8.  In the premises, as for the reasons given that it would be futile to extend time for what appears to be a hopeless appeal, and given the Applicant’s latest confirmation of his intention to return to his home country, I accordingly refuse his application for extension of time to appeal, and dismiss his summons.