RE RIGAN MITRA

HCAL 1063/2017

[2019] HKCFI 613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1063 OF 2017

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D E C I S I O N

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1.  On 7 December 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 or with any prospect of success in his intended application.

2.  The applicant now by a summons issued on 25 January 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 21 December 2018, and hence he was late by more than one month 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 will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

4.  In the applicant’s case a delay of more than one month cannot be regarded as insignificant, and in his supporting affirmation of the same date he explained that he did not receive any letter from the Court and hence was not aware of the decision until later when he was informed by the Immigration Department when he reported his recognizance, but no further particulars or documentary evidence were provided, and as the court records show the decision was sent on the same date to his last known address as the same as disclosed in his affirmation.  As such I do not accept that the decision did not reach him on time or that he has provided any good reason for his delay.

5.  Nor did he provide any draft or proposed ground for his appeal,or any particulars in his affirmation as to any error in the decision or why it was unreasonable or unfair, and as he failed to appear at the scheduled hearing of his summons for which he later wrote to explain that he was suffering from some stomach problem on that day and had to attend a clinic for medications and attached some receipts as proof. Given what seems to me a relatively minor ailment if it was indeed one which was otherwise not supported by any medical report, and in the absence of any proposed grounds of appeal, I do not see how another oral hearing could in the circumstances justify a further delay or how it could assist the Applicant to show any prospect of success in his intended appeal, and of which I am unable to find any.

6.  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.