JAMES CHAMAN LAL HARISH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1761/2020

[2024] HKCFI 500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1761 OF 2020

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D E C I S I O N

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Introduction

1.  This are the Applicant’s application by summons filed on 24 January 2024 (the “Summons”)  seeking leave to appeal the orders of this Court dated 11 December 2023 (the “Order”)  refusing his application for leave to apply for judicial review (the “leave applications”).   

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 24 January 2024 when the Summons was filed, his application was thirty 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.

Length of delay and reasons for the delay

4.  The application is thirty days late.  It is substantial in the context of a 14 days period of appeal.  In his supporting affirmation filed with the Summons, the Applicant alleged: (1)  that he believed the decision of this Court “have been reached unfairly, thereby denying [him] the opportunity to clarify [his] case and present [his] situation adequately” and (2)  that he had not been informed of the prescribed time limit within which to appeal.  

5.  He gave no explanation for the delay in appealing.  But from his second complaint, it appears that the reason for the delay is the Court’s failure to inform him of the 14-day time limit to appeal.  It is true that the Court did not inform him of the time limit to appeal, but ignorance of the law or time limit for taking any procedures is not an excuse.  He obviously had received the Form CALL-1 and Order.  He made no complaint about late delivery or non-receipt.  His sole complaint is that he was not informed of the time limit.  In other words, he sat on the Order for 44 days before he made up his mind to appeal.  That is not a reasonable explanation.

Prospect of success of the intended appeal

6.  In his Summons, he asked for leave to advance a new sole ground of appeal, but he did not provide any particulars of this intended ground of appeal.  His only ground of intended appeal as disclosed by his supporting affirmation is his belief that the decision of this Court “have been reached unfairly, thereby denying him the opportunity to clarify his case and present his situation adequately.  He did not give particulars about the unfairness complained of.  He only pointed out the consequence, ie he was denied the opportunity to clarify his case and present his situation adequately.  I shall give him the benefit of doubt that the alleged denial of the opportunity to clarify his case is the unfairness complained of.

7.  The impression conveyed by his supporting affirmation is that the leave application was determined on paper without him having been given the opportunity to advance argument about his case and his grounds of judicial review.  That is not correct.  As recorded in the Form CALL-1, the leave application was heard in open court in which he appeared in person.  His only ground of application as disclosed in his affirmation is that he disagrees with the decision of the Torture Claims Appeal Board (the “Board”).  He had been explained the applicable legal principles and the three basis on which the Court may review the decision of an administrative body.  He confirmed he had no complaints about errors of law, procedural unfairness and irrationality in the Decision sought to be reviewed.  Despite that, the Court conducted a rigorous scrutiny of the Board’s decision for errors of law, procedural unfairness and irrationality. He had the opportunity to clarify his case and present his situation adequately.  He has given no particulars of the unfairness complained of.

Conclusion

8.  The Applicant has no reasonable explanation for the inordinate delay. His complaint about unfairness is bare assertion lacking in particulars.  His intended appeal has no prospect of success.  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.  His application for extension of time to appeal is refused.