SANJEEV KUMAR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 319/2018

[2023] HKCFI 2073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 319 OF 2018

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BETWEEN

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D E C I S I O N

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1.  On 3 January 2019 I refused to grant leave to the Applicant 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 none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his 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 14 July 2023 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 expired on 17 January 2019, and hence he was more than 4 years 5 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of more than 4 years 5 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that he has been serving a prison term for robbery since 2019 in Tai Lam Correctional Institution that he was unable to file his appeal against the decision until recently when he was assisted by his friends to seek legal assistance from outside for 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 with access to assistance from social officer for legal process readily available to him within the prison, I am not satisfied that the Applicant has provided a good or valid reason for his such serious delay.

6.  More importantly, the Applicant also 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 in his summons, while in his affirmation he just stated as follows:

“I am the Applicant herein. The decision made by the High Court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that was a litigant in person & unrepresented. I did not receive any correspondence from the Court regarding my Judicial Review be refused as I’m serving sentence. I humbly request the Court to allow my appeal out of time and give a chance to explain.”

7.  The record however shows that Applicant did attend an oral hearing on 18 September 2018 before this Court for his leave application to apply for judicial review during which he was given every opportunity to make his representations and submissions for his application, and hence there is no basis or merits in this complaint of his, while at the hearing of his present application he just relied on his said affirmation without putting forth any proposed ground for his intended appeal. 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, 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.