RE DAS RATAN ALIAS SWAPAN BANIK

HCAL 568/2018

[2019] HKCFI 2470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 568 OF 2018

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DECISION

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1.  On 14 June 2019 Deputy High Court Judge Josiah Lam refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding 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 Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons dated 9 August 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 28 June 2019, and hence he was late by more than one month with his intended appeal. 

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 more than one month cannot be considered as insignificant, for which he explained in his supporting affirmation that although he had received the decision on time,as he does not read or write English and was not aware of the law, he had to resort to his friend for assistance who advised that he had three months to file his appeal, but by the time he realized that his friend’s advice was incorrect,he was already out of time with his intended appeal.

5.  However, at the hearing of his summons he claimed never to have received the decision from the Court, and that he only found out about it when he reported to the Immigration Department in late July 2019 when he was informed accordingly, he was by then already out of time with his intended appeal.  As this version was different from the one given in his affirmation, and when it was pointed out to him at the hearing, he claimed that he was not aware of what his friend had put down for him in his affirmation, and denied that was what he had told his friend, and insisted never to have received the decision in the mail from the Court.

6.  Regardless which version of the Applicant’s explanations is true, and in the absence of any independent evidence that his friend would indeed put in the affirmation of something not told or meant by the Applicant,in which case ignorance of the rules cannot be accepted as any valid reason for its non-compliance, whilst there is also no evidence other than the Applicant’s words that the decision had never reached him in the mail when the court record show that it was sent to his last reported address on the same day of the decision and has never been returned through undelivered post. In the circumstances I am not satisfied that the Applicant has provided any good reason for his delay.  

7.  More importantly, nor did he either in his summons or affirmation 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 when invited to do so at the hearing, he conceded that the Court has not committed any error or mistake in the decision, but that he just wanted to stay in Hong Kong.  As such and in the absence of any errors in the decision being 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.