RE SAKATTER SINGH

HCAL 315/2018

[2021] HKCFI 187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 315 OF 2018

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D E C I S I O N

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1.  On 23 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 (“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 3 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 ended on 7 July 2020, and hence he was late by about 8 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 8 weeks must be considered as significant, for which he explained at the hearing of his summons that he never received the decision in the mail, and was only later informed on the phone to collect the decision from the court, but that by then he was already out of time with his intended appeal.

5.  The court record indeed shows that the decision posted to his last reported address had subsequently been returned undelivered, and after having been contacted on the phone, the applicant attended at the Registry on 3 September 2020 to be handed a copy of the decision when he admitted that he has changed his address during his leave application but without informing the court, and so he was advised to issue his summons for extension of time to appeal.

6.  As it is his duty to inform the Director and the court in writing as soon as practicable of any change to his residential and/or correspondence address, the applicant is himself to blame for not receiving the decision on time as a result of his failure to inform the court regarding the change of his last address.          

7.  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 in his affirmation where he asserted to have good grounds of appeal but did not state what they are, and at the hearing of his summons he merely repeated his claim that he cannot go back to his home country as his problem is still there.  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.

8.  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.