RANA MD SHOHEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 552/2023

[2024] HKCFI 3235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 552 OF 2023

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 21 October 2024 seeking extension of time to appeal the order of this Court dated 23 September 2024 (the “Order”)  refusing his application for leave to apply for judicial review (the “leave application”)  of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office.

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 21 October 2024 when the Summons was filed, this application was fourteen days out of time.  Leave to appeal out of time is required. 

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of the delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if extension of time was granted.  Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time.  The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion

4.  The application is fourteen days out of time, which is substantial in the context of a 14-day period of appeal.  In his supporting affirmation, the Applicant claimed he had never received the Order.  The Court noted that the Order and Form CALL-1 had been sent by post to the Applicant’s address as stated in his present application.  The delivery service of Hong Kong Post is usually reliable.  The Applicant’s claim of non-receipt or delayed delivery is bare assertion, not supported by any particulars, let alone evidence.  To assist him to present a proper application for extension of time to appeal, directions were given to him to file an affirmation or a statement within 14 days of the directions setting out, inter alia:

(1)  the explanation for taking almost one month to make this application;

(2)  the date when and the circumstances under which the Order sought to be appealed was first received or brought to his notice; and

(3)  the grounds of his intended appeal. 

 As at the date of this decision, the Applicant has not responded.

5.  The delivery service of Hong Kong Post is usually reliable.  The Order and Form CALL-1 had been sent by post to the Applicant’s correct address as confirmed by his summons and supporting affirmation.  They have not been returned through the course of mail.  There is nothing to suggest they have not been properly delivered.  Indeed, the Applicant had notice of the Order.  The circumstances suggest his claim of non-receipt is just a bare assertion which does not reflect the truth.  Without his complying with the directions, this Court could have no way to know the true reason for the delay and could not assess the reasonableness of the delay.  

6.  The Applicant has also not put forward the grounds of his intended appeal.  Hence, this Court could not assess if his intended appeal has any prospect of success.

Conclusion

7.  In conclusion, despite clear directions having been given to the Applicant to provide information required to support an application for extension of time, he wholly failed to provide any information to enable this Court to determine if he has a reasonable explanation for the substantial delay or to assess the  prospect of success of his intended appeal.  The only inference this Court could draw is that he has neither a reasonable explanation for the substantial delay nor grounds of appeal with prospect of success.  His application is just an abuse of process which is calculated to delay his refoulement process.  In the circumstances, there is no need to consider prejudice to the respondent.  Accordingly, his application for extension of time is refused.