RE GURJIT SINGH

HCAL 828/2017

[2019] HKCFI 1585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 828 OF 2017

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D E C I S I O N

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1.  On 22 March 2019 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal/petition regarding his non- refoulement claim upon finding none of the grounds put forward by him as reasonably arguable, that there was no error of law or procedural unfairness in the Board’s decision, and that there was no realistic prospect of success in his intended application.

2.  The applicant now by a summons issued on 18 April 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 5 April 2019, and hence he was late by 13 days 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 will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted: Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; and Wong Yuk Manv Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016).

4.  In the applicant’s case a delay of 13 days may not be considered as substantial or excessive, for which he explained in his supporting affirmation of the same date that he was unaware of the rule for filing the appeal within 14 days, and that he received the judgment “really late”.  The court record however revealed that the decision was sent on the same day to his last reported address without being returned as undelivered mail, and in the absence of any evidence as to how “really late” that he actually received it, and as ignorance of the law can never be accepted as a valid explanation for failing to comply with the rules, I do not accept that he has provided any valid or good reason for his delay.

5.  I turn next to consider the prospect of success of his intended appeal, which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re MK HCMP 2609/2016 (unreported, 10 January 2017); Islam Raja Rais v Director of Immigration HCMP 881/2017 (unreported, 26 June 2017); Re Gurung Min Bahadur [2018] HKCA 226.

6.  The applicant did not provide any draft or proposed ground of appeal in his summons, and in his supporting affirmation he merely stated as follows:

“ I am the Applicant herein. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. The decision has heavily relied on the Country of Origin provided by the ImmD. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. Moreover, I received the judgment really late.”

7.  It seems therefore his proposed grounds of appeal are that the decision was unfair but without providing any particulars or elaboration how it was so, and that he was not given any opportunity to argue his case presumably in an oral hearing, but for which he never made any request in his leave application, and again in the absence of any particulars or elaboration from him, and given the findings of both the Director and the Board that his claim was based on a private land dispute between him and his uncle and thatthe risk was localized in his home village that state protection and reasonable internal relocation in other parts of his home country were available to him that there was simply no justification to afford him with non-refoulement protection in Hong Kong, I fail to see how an oral hearing could have assisted him or advanced his case any further for his leave application.  As such I do not find any of his grounds reasonably arguable or that there is any realistic prospect of success in his intended appeal.

8.  In the premises it would be futile to extend time for what appears to me a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.