RE GARILLO RICHARD ORTAL

HCAL 589/2018

[2019] HKCFI 1866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 589 OF 2018

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DECISION

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The application

1.  The applicant is an illegal immigrant and he lodged a non‑refoulement claim with the Director of Immigration (“the Director”).  The Director rejected his application and he appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  Having considered his evidence, the Board by its Decision dated 15 March 2018 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form 86 to apply for leave for judicial review of the Board’s Decision.  He had appeared before Deputy Judge J. Lam, who by Order dated 30 April 2019 refused to grant him leave to apply for judicial review of the Board’s Decision.  The Deputy Judge had given the reasons for rejecting his application in Form Call-1 dated 30 April 2019 (“the Deputy Judge’s decision”).

3.  The applicant intends to appeal to the Court of Appeal against the Deputy Judge’s decision.  However, he is out of time under Order 53, rule 3(4) of the RHC.  The deadline for him to appeal should be 14 May 2019.  He took out a summons for time extension for his appeal on 15 May 2019.  He is therefore only one day late.

The applicant’s affirmation

4.  The applicant filed an affirmation in support of his application.  In his affirmation he said that he had to obtain assistance from his friend and he was one day late.

5.  The applicant had not identified the reasons for the realistic prospect of success or in what respect Deputy Judge J. Lam had made any mistake or committed any error in making his decision refusing leave to him to apply for judicial review.

Discussion

6.  In Re: Rana Jaswant [2019] HKCA 102, CAMP 160/2018, 6 March 2019, the Court of Appeal held that this Court has the jurisdiction to deal with this application under Order 59, rule 15 of the RHC.  See paragraph 8.1.

7.  In the above judgment, the Court of Appeal also held that to consider whether time extension should be granted, the court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. See paragraph 8.6.

8.  As said before, the applicant is only one day late.  I accept that the length of delay is minimal.  However, he was unable to set out any ground in support of his appeal against the Deputy Judge’s decision.  I consider that he had no reasonable prospect of success of the intended appeal.

9.  In the circumstances, I dismiss his application.