RE SHIVJIT SINGH

HCAL 300/2018

[2021] HKCFI 446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 300 OF 2018

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D E C I S I O N

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1.  On 6 May 2020 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”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding no good reason for his serious delay with his intended application, that 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 24 September 2020 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 expired on 20 May 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 very substantial or excessive, for which he explained in his affirmation that he was illiterate and unrepresented and was not aware of the rules regarding the 14-day period for filing his appeal, and that he never received any correspondence from the court regarding his application for judicial review.

5.  Ignorance of the rules of course can never be accepted as any reason or excuse for their non-compliance, while the record shows that the decision was sent on the same day to the applicant’s last reported address without being returned through undelivered mail. As such and in the absence of any further details or documentary evidence in support of the applicant’s bare assertion, I am not satisfied that he has provided any good or valid reason for his serious delay.

6.  More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable in his summons, while in his said affirmation he merely stated that the decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country when he never requested any oral hearing for his judicial review application. Even in his present application now before me, the applicant did not identify what further clarification that he had wanted to make regarding his claim, nor did he appear at the hearing of his summons without any explanation.

7.  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.

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