RE BUTA SINGH

HCAL 2547/2019

[2021] HKCFI 1522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2547 OF 2019

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D E C I S I O N

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1.  On 11 June 2020 I dismissed the applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal regarding his non-refoulement claim at his written request for its withdrawal on the basis of his stated reason that his problem in his home country which was the cause of his claim had been resolved.

2.  The applicant now by a summons issued on 23 February 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 High Court, Cap 4A ended on 25 June 2020, and hence he was almost 8 months 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 8 months must be regarded as very substantial, for which he explained at the hearing of his summons that he was at one time ready to leave Hong Kong to return to his home country, but later he had a change of mind and decided to remain in Hong Kong, and in order to do so he was advised that he must appeal against the decision, but by then he was already way out of time with his intended appeal.

5.  A change of mind about one’s legal proceedings cannot of course be accepted as any good or valid reason for procedural breaches, let alone such a serious one. As such I am not satisfied that the applicant has provided any good 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 either in his summons or affirmation, or that his earlier request to withdraw his application might not have been valid or validly given, and at the hearing he simply stated that he does not want to go back to his home country. In the circumstances 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, 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.