RE LITU MIA

HCAL 1278/2018

[2020] HKCFI 2173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1278 OF 2018 

_____________

_____________

D E C I S I O N

_____________

1.  On 10 June 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding 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 of Immigration 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 7 July 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 24 June 2020, and hence he was late by 13 days 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 13 days may not be regarded as substantial or excessive, for which he explained at the hearing of his summons that he did not receive the decision until 6 July 2020 when he was already out of time, and so he immediately on the following day issued his application for extension of time to appeal.

5.  The court record shows that the decision was sent to the Applicant on the same day of 10 June 2020, and in the absence of any documentary evidence such as the envelope with the postmark in support of his claim, I find it doubtful that he only received the decision in the mail almost one month later, but given the impact of the Covid-19 pandemic on the mail service, and the relatively insignificant delay in his case, I propose to focus on the merits, if any, of his intended application.     

6.  However, the Applicant did not in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and at the hearing he could only repeat his claim that he still has problems in his home country that he cannot go back.  As such 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. 

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.