RAJAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1890/2024

[2025] HKCFI 2132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1890 OF 2024

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BETWEEN

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D E C I S I O N

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1.  On 9 January 2025 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding that 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 (“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 6 February 2025 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 23 January 2025, and hence he was 2 weeks 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 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 be considered as significant, for which he stated in his affirmation as follows:

“I am the Applicant. I believe that the decision made by Deputy High Court Judge Bruno Chan was reached unfairly, as I was not given an opportunity to clarify my case and situation in my home country. As a new asylum seeker in Hong Kong, I am unfamiliar with the court’s rules and regulations. Being a litigant in person, illiterate and unrepresented has made me unaware of the relevant time limits.

I did not receive any correspondence from the Court regarding the refusal of my Judicial Review or the date of the Court hearing, which is why I did not attend. I only learned that my Judicial Review had been refused from my Immigration case officer upon reporting. I would like to express my fear of being killed or harmed if I return to my country India. I humbly request that the court allow my appeal to be considered out of time and grant me the opportunity to explain my situation.”

5.  The court record shows that the decision was sent on the same day of 9 January 2025 to the Applicant’s last reported address as provided by the Immigration Department but was subsequently returned through undelivered post, but upon further enquiry with the Immigration Department that the address was confirmed to be the latest one provided by the Applicant, and if the Applicant indeed did not receive the decision in the mail and that he was only so informed later by his immigration officer, the Applicant did not provide any further details as to when that took place, nor did he attend the hearing of his summons without any explanation, while it was also his duty to always update his latest address to the authorities including the court as he was waiting for the court’s decision on his leave application. Nevertheless, and in the circumstances, I propose to focus on the prospect of success of his intended appeal.

6.  However, the Applicant 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 as noted above other than some bare assertions that the decision was unfair as he was not given the opportunity to clarify his case or the situation in his home country, when the fact is that he never attended the scheduled hearing of his leave application without any explanation, nor did he as noted above attend the hearing of his present application without any explanation. 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. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.