RE VICTOR VITUS CHIZOBA

HCAL 1697/2018

[2020] HKCFI 2174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1697 OF 2018 

_____________

_____________

D E C I S I O N

_____________

1.  On 20 December 2019 Deputy High Court Judge Woodcock 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 regarding 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 of Immigration 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 18 May 2020 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 3 January 2020, and hence he was late by more than 4 months 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 4 months must be considered as substantial or excessive, for which he explained in his supporting affidavit that on 6 January 2020 when he was on his way to the High Court to file his intended appeal, he left behind all his documents including the decision and his recognizance paper when he got off the bus at Admiralty, for which he had to retrieve a copy later from the court and to start all over again with the preparation of his notice of appeal, but by the time he was ready to file it, the High Court Registry had closed due to the general adjournment of proceedings (“GAP”) and the subsequent closure of the court registries due to the Covid-19 pandemic, and hence he was unable to file his appeal until after the GAP ended in early May 2020.  In support of his claim, the Applicant also attached a copy of his report to the police of the loss of his documents made on the same day of 6 January 2020.

5.  Having examined the attached police report, I am prepared to accept the Applicant’s explanation that he was ready to file his appeal on 6 January 2020 but for the loss of the documents on the bus, in which case he would still be late but for a relatively short delay of 3 days only.  However, his procedural breach was caused solely by his own carelessness which should not put him in the same position as other litigants who had been similarly affected by the pandemic and the general adjournment of legal proceedings.  In the circumstances I am not entirely sympathetic to the reason for his delay.         

6.  More importantly, in his proposed notice of appeal attached to his summons the Applicant merely put forward a single broad ground of appeal in that “the decision is substantially unfair” without providing any particulars or elaboration as to how it was so, nor was he able to do so at the hearing of his summons.  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.