GHIMIRE AMIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 379/2019

[2024] HKCFI 1211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 379 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 20 March 2024 (the “Summons”) seeking leave to appeal the order of this Court dated 28 February 2024 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”).

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 20 March 2024 when the Summons was filed, his application was seven days late. Leave to appeal out of time is required.

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted. Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time. The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Length of delay and reasons for the delay

4.  The application is only seven days late. Indulgence may be readily given if there is a reasonable explanation for the delay and the intended appeal has good prospect of success. In the Summons, the Applicant said:

“The High Court dismissed my leave to apply for judicial review. I did not get the High Court Decision. My reporting officer from immigration asked me about my J.R. I want to appeal. Please extend time.”

5.  In his supporting affirmations filed with the Summons, he said:

“I want to appeal against the decision of the High Court. My scheduele (sic) time passed. I request for permission.”

6.  As the Court did not consider these documents contain adequate explanation for the delay and the Applicant has not set out the grounds of his intended appeal, the Court gave him given specific directions to file an affirmation or statement setting out the date when and the circumstances under which he received the Order and the grounds of the proposed appeal. He was also advised that his application for extension of time will be determined on paper after 21 days from the date of the directions regardless whether the directions have been complied with. As at the date of this decision, 50 days have lapsed, he has not complied with the directions.

7.  Putting what the Applicant said in his Summons and supporting affirmation together and with generous assumptions in his favour, the Court understands the Applicant’s explanation for the delay is that he never received the Order and it was only until he was informed by an immigration officer that he knew his leave application had been refused; but by then time to appeal has lapsed.

8.  While his Summons and supporting affirmation have set out the circumstances under which he learned about the Order, these documents gave no information as to the date when he was informed about the Order. The information is required to assess the reasonableness of the delay. Despite clear directions requesting for the information and knowledge of the consequence, he chose not to provide the information. The directions were sent to the address he gave in his Summons. The delivery by Hong Kong Post is usually very reliable. The directions have not been returned through the course of mail. There is nothing to suggest the Applicant has not received the directions. The Court could only assume he deliberately chose not to comply with the directions because he has no reasonable explanation to offer for the delay.

Grounds of intended appeal and prospect of success

9.  Given the short delay, the most important consideration whether to allow extension of time is the prospect of success of the intended appeal. The Applicant has not provided the grounds of the intended appeal to enable the Court to make an assessment. He had been specifically directed to state the grounds of his intended appeal. He had been advised that his application for extension of time will be determined after 21 days from the date of the directions. He must have known that if he does not provide the grounds within 14 days, his application will be determined on paper after a further 7 days’ grace period. He must also appreciate that without providing the grounds the Court could have no basis to consider his application for extension of time and his application stands no chance that it will be allowed. As he has not provided the grounds, he failed to show his intended appeal has any prospect of success.

Conclusion

10.  In view of the conclusions reached above, there is no need to consider the issue of prejudice to the respondent if extension of time is granted. As the Applicant has no reasonable explanation for the delay and has demonstrated no prospect of success in the intended appeal, his application for extension of time to appeal is refused.