RE LAMA AJAY

HCAL 509/2018

[2022] HKCFI 2602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 509 OF 2018

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D E C I S I O N

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1.  On 30 June 2020 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“Director”)  or of the Torture Claims Appeal Board (“Board”)  in rejecting/dismissing his non-refoulement claim upon finding that none of his proposed grounds were 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 21 July 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 the High Court, Cap 4A ended on 14 July 2020, and hence he was more than 1 year 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 1 year must be considered as extremely substantial and inordinate, for which he explained in both his affidavit and at the hearing of his summons that he did not receive the decision in the mail because he had then moved to a new address without informing the authorities, and it was much later when his friend who lived in his former address noticed the decision and informed him accordingly, but by then he was already way out of time with his intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicant’s then reported address without being returned through undelivered post, and if he had indeed at that time changed his address but without informing the authorities or the Court, of which it was clearly his duty to do so, then he had only himself to blame for not receiving the decision in the mail within time. In the circumstances I am not satisfied that the Applicant has provided any good or valid reason for his serious delay.

6.  More significantly, 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 Court did not fully understand the risk and danger that he will face in his home country but without providing any details or 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, 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.