RE GURUNG KHEM

HCAL 1945/2019

[2021] HKCFI 330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1945 OF 2019

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D E C I S I O N

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1.  On 22 September 2020 I 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 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 20 October 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 expired on 6 October 2020, and hence he was late by 2 weeks 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 2 weeks may not be regarded as significant, for which he explained in his supporting affirmation and also at the hearing of his summons that he never received the decision in the mail, and was only told about it by his immigration officer when he made his regular report on his recognizance but by then he was already out of time.

5.  The court record however shows that the decision was sent on the same day by post to the applicant’s last reported address without being returned through undelivered post. As such I am not convinced by the applicant’s explanation, but given his relatively insignificant delay, I propose to focus on the prospect of his intended appeal.   

6.  However, he did not put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or in his affirmation in which he merely repeated his complaints about the decisions of the Director and the Board for rejecting his claim, but all of which had already been properly dealt with in my decision refusing leave, while his other complaint of not being provided with legal representation for his leave application for judicial review cannot be accepted as any valid or arguable ground of appeal. 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.