RASIWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1595/2019

[2024] HKCFI 1334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1595 OF 2019

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BETWEEN

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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 3 April 2024 (the “Summons”) seeking leave to appeal the order of this Court dated 4 March 2024 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”).

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 3 April 2024 when the Summons was filed, he was late by sixteen days. 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.

Length of delay and reasons for the delay

4.  The delay of sixteen days is substantial in the context of a fourteen days’ period of appeal. A reasonable explanation for the delay is called for. In his supporting affirmation, the Applicant said:

“I crave leave to appeal out of time as I didn’t receive the order and judgment within 14 days I should be given an reasonable opportunity to present my case Exhibit-A, Page = 8.”

Exhibit-A is a copy of the Order which he seeks to appeal.

5.  The Court understands that his explanation is that he did not receive the Order within fourteen days to allow him enough time to file the appeal. But his affirmation does not give any information as to the date when and the circumstances under which he received the Order. The information is necessary for the Court to assess how much time he had since receiving the Order and the reasonableness of the delay. In addition, the Applicant has not set out the grounds of his intended appeal. Hence, the Court gave him given specific directions to file an affirmation or statement setting out the date when and the circumstances under which he received the Order and the grounds of the proposed appeal. He was also advised that his application for extension of time will be determined on paper after 21 days from the date of the directions regardless whether the directions have been complied with. As at the date of this decision, 39 days have lapsed, he has not complied with the directions. There is therefore no factual basis for the Court to assess the reasonableness of his explanation for the delay.

6.  Apart from the explanation, the most important consideration whether to allow extension of time is the prospect of success of the intended appeal. The Applicant has not provided the grounds of the intended appeal to enable the Court to make an assessment. He was specifically directed to state the grounds of his intended appeal. He was advised that his application for extension of time will be determined after 21 days from the date of the directions. He must have known that if he does not provide the grounds within fourteen days, his application will be determined on paper after a further seven days’ grace period. He must also appreciate that without providing the grounds the Court could have no basis to consider his application for extension of time and his application stands no chance that it will be allowed. From his failure to state his grounds of the intended appeal, it is open to the Court to draw the inference that he has no reasonable or arguable grounds of appeal. As he has not provided the grounds, he failed to show his intended appeal has any prospect of success.

Conclusion

7.  In view of the conclusions reached above, there is no need to consider the issue of prejudice to the respondent if extension of time is granted. As the Applicant has no reasonable explanation for the delay and has demonstrated no prospect of success in the intended appeal, his application for extension of time to appeal is refused.