RE GORA

HCAL 852/2018

[2022] HKCFI 100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 852 OF 2018

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application for extension of time to appeal the order of Deputy High Court Judge CP Pang (“DHCJ Pang”) dated 8 October 2020 refusing to grant him leave to apply for judicial review (the “Order”).

2.  On 16 May 2018, the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 12 April 2018 (the “Decision”).  By that Decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 24 November 2016 refusing his application for non-refoulement protection.

3.  On 24 December 2020, more than two and half months after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time.  He advanced two grounds in his application: (1) he “(doesn’t) have money to paid court”; and (2) he has genuine problem in his home country.

The Law

4.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the court of Appeal within 14 days after such order.  His application is out of time by more than two months.

5.  In AW v Director of Immigration and William Lam^[1], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined.  In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5)  whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

Discussion and conclusion

6.  The first reason given by the Applicant is absolutely groundless.  No fee is charged for filing a notice of appeal.

7.  The second reason is a challenge of  the Board’s Decision as well as DHCJ Pang’s Order, but he advanced no grounds for appealing the judge’s Order.  In his supporting affirmation filed on the same date, the Applicant annexed the Call-1 Form which set out fully the reasons why his application for leave was refused.  Having rigorously examined the Call-1 Form, the Decision, the papers and the evidence with anxious scrutiny, this Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the Unified Screening Mechanism; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Court agreed with the reasons given by DHCJ Pang in refusing the Applicant’s leave to apply for judicial review.  In the absence of any particular grounds of appeal showing an arguable appeal, this Court found there is no realistic prospect of success in the proposed judicial review and appeal.

8.  The delay is more than two months, which is substantial having regard to the time allowed for appealing.  There is no explanation for the delay and no merits in the substantive application.  Accordingly, there will be no prejudice to the Applicant if time is not extended as he is doomed to fail; but there will be prejudice to the public administration if he is allowed to appeal out of time.  There is no question of general public importance.  Accordingly, leave to apply for appeal is dismissed.