RE SIDHU BALBIR SINGH

HCAL 601/2018

[2020] HKCFI 1961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 601 OF 2018

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D E C I S I O N

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1.  On 20 September 2019 I refused to extend time for the Applicant to file his late application for leave 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 that there was no good reason for extending the period within which his application may be made due to his failure to provide any valid explanation for his more than 5 months’ delay, that 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 May 2020 seeks leave to appeal against that 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 High Court, Cap 4A ended on 4 October 2019, and hence he was late by more than 7 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 7 months must be considered as very substantial or excessive, for which he explained in his supporting affirmation that he was unrepresented and was therefore not aware of the rule requiring him to file his appeal within 14 days.

5.  While I accept that he may no longer be represented by the Duty Lawyer Service at that time, the fact is that he was then being detained at the Castle Peak Bay Immigration Department and would have access to legal assistance, and that it seems he did have such assistance in the preparation and presentation of his present application and affirmation.

6.  Furthermore, even if one is to discount the General Adjourned Period (“GAP”) announced by the Judiciary due to the Covid-19 pandemic resulting in general closure of the court and tribunal registries from 29 January 2020 to 3 May 2020, the Applicant would still have been more than 3 months late with his notice of appeal before the GAP which would still be regarded as a serious procedural breach.

7.  More importantly, he failed to provide in his summons 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, while in his supporting affirmation he merely made some broad and vague assertions that the decision was unfair without providing any relevant particulars or elaboration as to how or why it was so, nor did he appear in court to do so at the hearing of his application.  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 leave to appeal out of time, and dismiss his summons.