RE RUPINDER SINGH

HCAL 822/2018

[2020] HKCFI 3074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 822 of 2018

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DECISION

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Background

1.  On 7 August 2020, I refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 7 May 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 24 February 2017 rejecting the applicant’s non-refoulement claim.

2.  I refused to grant leave to the applicant to apply for judicial review for reasons stated in [9-15] of Form CALL-1 (“the court’s decision”).  I found in conclusion that there is no prospect of success in the applicant’s intended application for judicial review.

3.  By a summons filed on 30 September 2020, the applicant applied for extension of time to appeal against my refusal of leave.  The applicant had 14 days from the order to apply to appeal that decision to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time.  He was late by more than a month with his intended appeal.

4.  In his summons and supporting affirmation, the applicant did not provide any draft or proposed grounds of appeal, or particulars of errors or unfairness in the court’s decision.  He only stated in his affirmation that “my decision was too late to get from High Court” and said in his summons that he does not agree with the court’s decision.

5.  At the hearing, he said he did not receive the court’s decision as he had changed his address without informing the court.  As to the grounds of appeal, he reiterated that he was not satisfied with the court’s decision.

Discussion

6.  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.

7.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

8.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

9.  The applicant explained that he had not received the decision as he had changed his address but he forgot to inform the court.  It is the duty of a litigant to give the court an address and update it to which correspondence or notice can come to the litigant’s attention in a timely manner.  The consequences of any delay arising from failing to do so will fall upon the litigant.

10.  In my view, the applicant does not have a cogent explanation for the delay.  The delay is not excusable.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.  In any event, I find the intended appeal has no prospect of success.

11.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  The applicant has not identified any grounds of appeal or errors in the court’s decision.  None could be ascertained from the papers or at the hearing.  Not being satisfied with the court’s decision cannot be a viable ground of appeal.

Conclusion

13.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal. Accordingly, I refuse to grant extension of time, and the summons dated 30 September 2020 taken out by the applicant is dismissed.