RE GAGANJEET SINGH

HCAL 927/2018

[2021] HKCFI 847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 927 of 2018

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DECISION

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Background

1.  On 8 October 2020, I refused to grant leave to the applicant to apply for judicial review (“the Court’s order”) against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 30 April 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 30 December 2016 rejecting the applicant’s non-refoulement claim.

2.  The Court refused to grant leave to the applicant to apply for judicial review for reasons stated in [12-20] of its decision (Form CALL-1).  Significantly the Court found that the applicant’s intended application for judicial review had no realistic prospect of success [21].

3.  By a summons filed on 11 December 2020, the applicant applied for extension of time to appeal against the Court’s order.  The applicant had 14 days from that order to apply to appeal to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time. The 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 22 October 2020. He was therefore late by more than 1 ½ months with his intended appeal.

4.  In his summons and supporting affirmation, the applicant stated that he did not receive the Court’s order until he was told by an immigration officer of the result and he only obtained a copy of the Court’s order on 10 December 2020.  He asked for leave to “advance a new sole ground of appeal”.  At the hearing, he said in October last year he had moved to his new address at Yaumatei, but he informed the Court in around November 2020.  His “new sole ground of appeal” is that his problem in India is not yet solved and he is still in danger in India.

Discussion

Principles governing application for extension of time to appeal

5.  The principles governing the exercise of the Court’s discretion to extend time to appeal are well-established.  The Court would consider: (1) the length of the delay; (2) the reasons for delay; (3) the merits of the intended appeal; and (4) any prejudice to the intended respondent (although the lack of prejudice does not mean that time should be extended).

Length of delay

6.  As for the period of delay, the intended appeal is more than 1 ½ months late.  The delay is not a short one.

Reasons for delay

7.  As for the reasons for the delay, the applicant explained that he did not receive the Court’s order (which was sent to him by post to his reported address) as he had moved to a new address.  Assuming it is true, it is the duty of a litigant to give the Court an address and update it, to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant.  Moreover, the applicant did not inform the Court his new address promptly.  He should bear the consequence.  I do not find the delay excusable.

Merits of intended appeal

8.  The merit of the intended appeal is a more important factor.  It is well-established that an application for leave to issue judicial review is not an opportunity for a re-hearing of the claim.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  The applicant did not advance any valid grounds for judicial review.  His intended judicial review had no prospect of success and was unmeritorious. 

9.  The applicant did not put forward any viable grounds of appeal or identify any errors in the Court’s decision.  Repeating his feared risk is not a viable ground of appeal.  His intended appeal has no merit at all.

Conclusion

10.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time.  The summons dated 11 December 2020 taken out by the applicant is dismissed.