RE RASCHPAL SINGH

HCAL 94/2018

[2020] HKCFI 511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 94 OF 2018

_____________

_____________

________________________

D E C I S I O N

________________________

1.  On 3 October 2019 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) in rejecting his non-refoulement claim upon finding that there was no good reason for his more than 4 months delay with his application, that he had failed to put forward any reasonably arguable ground for his intended challenge, that there was no error of law or procedural unfairness in his process before the Director or in his decision, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 26 November 2019 seeks leave to appeal against that decision out of time, 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 17 October 2019, and hence he was late by more than 5 weeks 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 5 weeks must be considered as significant, for which he explained at the hearing of his summons that he received the decision late by about one week, and as he did not know how to prepare the necessary documents and had had to find help from his friends that by then he was already out of time with his intended appeal.

5.  The court record shows that the decision was sent by post on the same day to the Applicant and hence no reason why he would only receive it one week later, and in the absence of any further corroborative evidence from him such as the posting date marked on the envelop which contained the decision, I am not satisfied that the Applicant has provided any good or valid reason for his delay.    

6.  More importantly, nor did he in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and at the hearing he merely repeated that his life would be in danger if returned to his home country and that he should be allowed to remain longer in Hong Kong.  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, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.