RE SAKATTAR SINGH

HCAL 662/2018

[2020] HKCFI 1266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 662 OF 2018

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D E C I S I O N

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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 22 March 2018 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decisions.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.  He had appeared Deputy Judge J. Lam, who by Order dated 20 February 2019 (“the Deputy Judge’s decision”), refused to grant him leave to apply for judicial review of the Board’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) RHC.  The deadline for him to appeal should be 6 March 2019.  He took out a summons for time extension for his appeal on 13 March 2019.  He is therefore seven days’ late.

4.  A hearing was fixed for him to attend court for his application on 15 May 2019.  However, he was absent and his application was dismissed for want of prosecution, with liberty to apply to set aside the order.  On 3 June 2019, the court received a return mail.

5.  By summons dated 10 July 2019, the applicant applied for leave to appeal against the Deputy Judge’s decision out of time.

6.  A hearing was fixed on 4 September 2019 for the applicant.  However, without any prior notice or explanation, the applicant failed to attend this hearing.  I directed that a written decision would be delivered.

The applicant’s affirmation

7.  The applicant filed an affirmation in support of his application.  In his affirmation he said that he did not receive the Notice of Hearing for the last hearing because the address he gave to the Court was his friend’s address.  The landlord of his friend had gone to China, taking with him the key to the letter box.  Therefore, his friend was unable to have access to the Notice of Hearing.

8.  The applicant further stated that he was advised that he had good grounds of appeal.  But it was not necessary for the Court to consider them at this stage.  This is unacceptable because this Court has to consider whether he has merits in his proposed appeal.

9.  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

10.  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 RHC.  See paragraph 8.1.

11.  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. [8.6]

12.  The delay is relatively short.  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 in the intended appeal.

13.  In the circumstances, I dismiss his application.