RE TAMANG BHAKTALAL

HCAL 529/2020

[2022] HKCFI 3612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 529 OF 2020

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D E C I S I O N

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1.  On 8 February 2022 I refused to extend time to the late application of the applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in refusing to allow the late filing of his appeal/petition regarding his non-refoulement claim upon finding that there was no good reason for his serious delay of more than 4 months with his application, 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 7 June 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 22 February 2022, and hence he was more than 3 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 more than 3 months must be considered as very substantial and inordinate, for which he explained in both his affirmation and at the hearing of his summons that being an unrepresented litigant he was not aware of the procedural rules for the filing of appeals, and that by the time he was able to find help with his intended appeal, he was already out of time to do so.

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 it is true that the applicant was unrepresented and might require help with his litigation, the fact is that ignorance of the rules can never be accepted as an excuse for their non-compliance. In the circumstances, I am not satisfied that he has provided a good or valid reason for his 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 either in his summons or in his affidavit, and at the hearing of his summons he could only state that he is not satisfied with the decision as his life would still be at risk in his home country that he cannot yet return. 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.

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.