RE AMANDIP SINGH

HCAL 172/2018

[2021] HKCFI 13

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 172 OF 2018

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D E C I S I O N

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1.  On 12 October 2018 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 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 4 August 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 ended on 26 October 2018, and hence he was late by more than 1 year and 9 months 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 more than 1 year and 9 months must be considered as very substantial and excessive, for which he first explained in his supporting affirmation that he was in the custody of the Correctional Services Department and was therefore unable to file his appeal.

5.  At the hearing of his summons and when he was asked to elaborate his claim of being in custody, he requested and was granted further time to produce further supporting evidence, of which he did on 23 November 2020 submit a further statement in which he essentially claimed to have been arrested by police on 23 May 2018 for theft, for which he was later together with several other accuses charged under Case TMCC No. 1251 of 2018, during which he was remanded for “almost half a year” until his charge was eventually dropped on 8 November 2018, but by then his leave application for judicial review was already refused on 12 October 2018 while he was still in custody.

6.  He went on to explain that he did not know what to do after his leave application had been refused by the court, but later on 18 August 2019 he was injured in an altercation and was hospitalized in Queen Mary Hospital, and later on 30 August 2019 he was again arrested by police for theft and was subsequently charged under Case No. TMCC 362/2019, and had been essentially in and out of police custody for the following year or so which explained his serious delay with his intended appeal.

7.  To his statement the Applicant also attached a copy Admission Slip allegedly issued by Queen Mary Hospital with an admission date on 25 October 2021 for removal of his right tibia fracture nail as evidence of his early hospitalization at the Queen Mary Hospital.

8.  Having the Applicant’s documentary evidence as well as the court records, I accept the Applicant’s explanation that he was indeed in custody on remand at Lai Chi Kok Reception Centre at the material times including when the decision refusing his leave application was delivered on 12 October 2018, but that even on his own case the Applicant failed to make any attempt to bring his intended appeal after his release in November 2018 and up to August 2019 when he was allegedly arrested again by the police, which would have given him some 9 months to seek assistance with his intended appeal. As such and given the fact that 9 months would have been considered as ample time and opportunity for him to make meaningful attempts to proceed with his intended appeal notwithstanding his other alleged predicaments, I am not satisfied that the Applicant has provided any good or valid reason for his serious delay.              

9.  More importantly, nor did he 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 affirmation or at the hearing of his summons despite being invited by the court to do so. In the circumstances 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.       

10.  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.