ANOP PAN-IN alias PANG PO LUNG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1271/2019

[2024] HKCFI 2318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1271 OF 2019

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BETWEEN

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D E C I S I O N

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1.  On 21 May 2024 I refused to extend time to the Applicant’s seriously late application for leave 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 there was no good reason or justification for the very serious delay of more than 1 year 7 months with his application, 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 23 July 2024 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 4 June 2024, and hence he was more than 1 ½ months 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 more than 1 ½ months must be considered as substantial and inordinate, for which he explained in his supporting affirmation as follows:

“ … I was unaware of the proper steps for the appeal to Court of Appeal. I have since sought legal advice and learned that I can still file further appeals to the High Court/Court of Appeal. Before I sought legal advice, I did a Court search to obtain copy of my paper for this case in early of July because no paper was kept by myself, which take additional time for me to prepare the Appeal. My delay in making this appeal to Court of Appeal was short and there is true chance of successful in merit of my case as mentioned hereinabove.”

5.  The court record shows that the decision was sent on the same day of 21 May 2024 to the Applicant’s last reported address which is the same as stated in his present application without being returned through undelivered post, while his explanations given in his affirmation, such as his ignorance of the procedural rules or of not keeping the relevant court papers with him, cannot in my view amount to any valid reasons for his procedural breach, and for which I am not satisfied that the Applicant has provided any good or valid justification for his such serious delay.

6.  As for the merits or prospect of his intended appeal, the Applicant in his affirmation also failed to 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 reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation, nor was he able to do so at the hearing of his summons.

7.  Given the factual basis of the Applicant’s claim even on his own case, and as correctly found by both the Director and the Board in their decisions, that his claimed risk arose from some private monetary dispute between him and the creditor of his former business debts without any reliable evidence of any state or official involvement that state/police protection, as found by both the Director ([16] – [24] of decision) and the Board ([63] of decision), as well as reasonable internal relocation, as found by the Director ([25] – [30] of decision) and confirmed by the Board, would in any event be available to the Applicant upon his return to his home country to negate such risk that his non-refoulement claim failed on all the applicable grounds, any criticisms of the Board’s findings and assessment of the credibility of the claim as set out in the Applicant’s affirmation, and of which I do not accept or agree, would not in my view assist or advance the case for his intended appeal. As such, and in the absence of any error in the Court’s decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

8.  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.

9.  Last but not least, I should mention that the Applicant prior to the hearing of his application on 1 August 2024 did make an application for legal aid and hence the scheduled hearing of his summons on 29 August 2024 would still be within the period of the 42-day statutory stay, but given the fact that he should have done so much earlier, and that he subsequently did have legal assistance with his present application, I therefore directed that the stay be lifted and that his application be proceeded as scheduled.