RE MANISH

HCAL 845/2018

[2022] HKCFI 116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 845 OF 2018

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D E C I S I O N

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1.  On 18 September 2020 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the 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 15 June 2021 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 High Court, Cap 4A ended on 5 October 2020, and hence he was more than 8 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 8 months must be considered as very substantial or inordinate, for which he explained in his supporting affidavit that he never received the decision as he was then being held in custody and that his “legal knowledge is insufficient” but without providing any further details or particulars such as when and where was he being held in custody, nor did he attend the hearing of his summons without any explanation.

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 in the absence of any details or documentary evidence to corroborate his bare assertions or as to how and when he later came to learn about the decision which he now wants to appeal if he indeed did not receive it in the mail, I am not satisfied that the Applicant has provided any good reason for his delay.

6.  More importantly, the Applicant has 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 in which he just stated that the decision is unfair but without specifying how or any further details or elaborations, and as noted above that he also failed to attend the hearing of his summons without explanation. 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.