RE GREWAL JAGDEEP SINGH

HCAL 920/2017

[2019] HKCFI 1584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 920 OF 2017

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D E C I S I O N

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1.  On 31 August 2018 I 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/petition regarding his non- refoulement claim upon finding none of the grounds put forward by him as reasonably arguable, that there was no error of law or procedural unfairness in the Board’s decision, and that there was no realistic prospect of success in his intended application.

2.  The applicant now by a summons issued on 6 May 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 14 September 2018, and hence he was late by more than seven months.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted: see Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; and Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016).

4.  In the applicant’s case a delay of more than seven months must be regarded as substantial and excessive, for which he explained in his supporting affirmation of the same date that as he was sent to prison in May 2018 for undertaking employment without permission until his release in May 2019 when he was then transferred to CIC that he was able to get help from a lawyer to prepare his present application, but if he could have access to a lawyer while being detained at CIC, I fail to see why he could not have similarly done so while in prison.  As such I do not accept that he has provided any good reason for his serious delay.

5.  I turn next to consider the prospect of success of the intended appeal, which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Re MK HCMP 2609/2016 (unreported, 10 January 2017); Islam Raja Rais v Director of Immigration HCMP 881/2017 (unreported, 26 June 2017); Re Gurung Min Bahadur [2018] HKCA 226.

6.  The applicant however did not provide any draft or proposed ground for his appeal in either his summons or his affirmation, nor was he able to do so at the hearing of his summons or to give any particulars as to any error in the decision or why it was unreasonable or unfair, and in the absence of which I am unable to see any prospect of success in his intended appeal.

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