RE PAL JITENDER

HCAL 2709/2018

[2022] HKCFI 1189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2709 OF 2018

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D E C I S I O N

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1.  On 31 August 2021 I refused to extend time to the Applicant’s seriously late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in refusing to allow the late filing of his appeal/petition regarding his non-refoulement claim upon finding that there was no good reason for his serious delay of more than 3 years, that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 12 October 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 High Court, Cap. 4A ended on 14 September 2021, and hence he was some 4 weeks 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 4 weeks must be considered as substantial or inordinate, for which he explained at the hearing of his summons that he was not aware of the rules and had had to find someone to help him with his application, but by then he was already out of time with his intended appeal.

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 ignorance of the rules can never be accepted as an excuse for their breaches, and while I accept that he was legally unrepresented and required assistance with his litigation, I am not convinced that he has provided a good reason for his such serious 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, and at the hearing he could only repeat his claim as before of still having problem in his home country that he cannot yet return. 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. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.