RE ATTAH VALENTINE IKENNA

HCAL 1321/2018

[2021] HKCFI 333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1321 OF 2018

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D E C I S I O N

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1.  On 13 July 2020 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 18 September 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 expired on 27 July 2020, and hence he was late by 7 ½ weeks 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 7 ½ weeks must be considered as substantial or significant, for which he explained at the hearing of his summons that he did not know about the 14-day rule for filing of appeal, and as he was unrepresented, he had to look for someone to explain the decision to him and to prepare the necessary documents for him but by then he was already out of time with his intended appeal.  

5.  Ignorance of the rules cannot of course be accepted as any valid reason or excuse for their non-compliance, and while I accepted that the applicant was not legally represented and required assistance with his application, but that again cannot be accepted as a good or valid reason for such a significant delay.

6.  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 affidavit, and at the hearing of his summons he merely repeated his complaints against the Board’s decision as before which had already been dealt with in my decision. As such and in the absence of any error in my 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, 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.