RE VILLAREAL ESPERANZA VALDEZ

HCAL 405/2018

[2019] HKCFI 1668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 405 OF 2018

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D E C I S I O N

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1.  On 24 December 2018 Deputy High Court Judge Josiah Lam refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) in respectively rejecting his non-refoulement claim and his subsequent appeal upon finding none of the grounds put forward by him reasonably arguable, that there was no error of law or procedural unfairness in the process of his claim before them or in their decisions, and that there was no realistic prospect of success in his intended application.

2.  The applicant now by a summons issued on 31 May 2019 seeks leave to appeal against the learned judge’s decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 7 January 2019, and hence he was late by more than four months 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 more than four months must be regarded as significant or substantial, for which he explained in his supporting affirmation of the same date that he was not aware of the decision until recently, and at the hearing of his summons he clarified that as he never received the decision form the Court, and hence he was not aware of the decision until he was informed by the Immigration Department in May 2019 when he reported for his recognizance.  As the Court record shows that the decision was sent to him by post to his reported address on the same date of the decision, and as he has confirmed that he had not changed his address at the material time, and that he did report to the Immigration Department twice per month without fail, I am not persuaded that he never received the decision and that he only learnt about it in May 2019.  In the circumstances I do not accept that he has provided any good reason for his significant delay with his intended appeal.      

5.  More importantly, nor did he in his summons or affirmation provide any draft or proposed grounds of appeal, nor was he at the hearing able to identify any error in the decision or why it may be argued as unfair orunreasonable, when he in fact conceded that he just wanted to be given more time to remain in Hong Kong.  As such I am unable to see any prospect of success in his intended appeal. 

6.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.