RE MANDEEP SINGH

HCAL 735/2017

[2019] HKCFI 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 735 OF 2017

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D E C I S I O N

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1.  On 20 November 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 rejecting/dismissing 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 or 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 dated 21 June 2019 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 the High Court, Cap 4A ended on 4 December 2018, and hence he was late by more than six months with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal 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 M K 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 ImmigrationHCMP 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 six months must beregarded as substantial or excessive, for which he explained in his supporting affirmation that he was planning to return to his home country in India after the decision, but then the situation at home had changed and he therefore decided to continue with his case in Hong Kong but by then he was way out of time with his intended appeal.

5.  He did not however provide any particulars as to what situationhad changed in his home country to cause him to change his mind, which byitself of course cannot in any event be considered as any valid explanation or good reason.  As such I do not accept that he has provided any good reason for his serious delay.    

6.  More importantly, nor did he 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 of his summons he just claimed to require surgery or medical treatment in Hong Kong for his problem of frequent dizziness and hence he needed to continue with his claim in order to remain in Hong Kong. Hence in the absence of any reasonably arguable grounds of appeal or any errors 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 leave to appeal out of time, and dismiss his summons.