RE BIDJOUA EUSTACHE HAUVELITH

HCAL 1953/2018

[2022] HKCFI 1853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1953 OF 2018

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D E C I S I O N

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1.  On 12 November 2021 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that there was no good reason for his very serious delay of 10 months, that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 24 January 2022 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 the High Court, Cap 4A ended on 26 November 2021, and hence he was some 2 months late 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 2 months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he was unrepresented and not aware of the law and legal procedure, and as he does not read or understand English, he had had to seek help from others to prepare his application, but by then he was already out of time with his intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and while I accept that the Applicant in his circumstances would require assistance with his legal process, but given the fact that he already had experiences in prosecuting his appeal/petition to the Board as well as to this Court for his application for leave to apply for judicial review in the past, I am not satisfied that this would make a valid reason or excuse for his such serious delay.

6.  More importantly, the Applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or his affidavit, and at the hearing of his summons he could only repeat his complaint as before that the Director and the Board had failed to properly considered his claim of being tortured back in his home country. As such and in the absence of any error in the Court’s 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, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.