RE LE VAN CHI

HCAL 10/2021

[2021] HKCFI 3736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 10 OF 2021

_____________

_____________

_____________

D E C I S I O N

_____________

1.  On 29 July 2021 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 1 September 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 expired on 12 August 2021, and hence he was some 20 days 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 20 days must be considered as substantial or inordinate, for which he explained at the hearing of his summons that he received the decision late as he has since sometimes in 2020 been detained at Tai Tam Gap Correctional Institution (“TGCI”) and that it was only sometime in August 2021 that he received the decision sent there but by then he was already out of time with his intended appeal.

5.  The court record shows that the decision was first sent to the Applicant on the same day of 29 July 2021 to his then reported address at the Castle Peak Bay Immigration Centre (“CIC”) where he was thought to have been detained but the mail was returned unclaimed, and upon further enquiry with the Immigration Department which then confirmed that the Applicant has since been transferred to his present detention at TGCI, and so the decision was resent to him at TGCI on 13 August 2021 which would then bring the 14-day period for him to file his appeal to end of August 2021, and hence when he issued his present summons for extension of time, he was in fact just a couple of days out of time. In the circumstances, and given the fact that he is without legal representation and is in detention, his delay cannot be said to be significant, and hence I propose to focus on the prospect of success of his intended appeal.

6.  However, 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 in his affirmation in which he merely repeated his claim as before of fear of being killed by his creditor over his outstanding debts if refouled to his home country, and which he also repeated at the hearing of his summons. 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.