RE ONG SIU SIN KEVIN

HCAL 33/2018

[2020] HKCFI 2896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 33 OF 2018

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DECISION

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1.  On 11 December 2019 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 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 27 July 2020 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 27 December 2019 after discounting the Christmas holiday, and hence he was late by 7 months 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 7 months must be considered as very substantial and excessive, for which he explained in his affidavit and at the hearing of his summons that he never received the decision in the mail, and hence was not aware of the decision until sometime in July 2020 when he came to the court to update his address that he was by then already seriously out of time.

5.  The court record however shows that the decision was sent on the same day of 11 December 2019 to his then reported address and has never been returned through undelivered post, and as he confirmed at the hearing that he was then still residing at that address during the material time and that he only moved to a new address later in March 2020, and in the absence of any further or documentary evidence in support of his allegation, I am not satisfied that he has provided any good or valid reason for his significant delay.

6.  As for the merits, if any, of his intended appeal, in his proposed or draft grounds of appeal which he only produced after the hearing on 14 October 2020 with the court’s permission, the Applicant merely repeated his previous complaints against the Director and the Board as before and which had already been dealt with and rejected in the decision (at [20] – [21]).  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, 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.