RE JASPAL MASIH

HCAL 2574/2018

[2022] HKCFI 1302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2574 OF 2018

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D E C I S I O N

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1.  On 2 September 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in disallowing the late filing of his Notice of Appeal against the decision of the Director of Immigration (“Director”) which rejected his non-refoulement claim upon finding 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 27 September 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 16 September 2021, and hence he was 11 days 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 11 days may not be considered as substantial in his circumstances, for which he explained at the hearing of his summons that he was then suffering from poor health due to his diabetic condition that he was required to rest at home, but that later when he was feeling better and was ready to leave his home to file his notice of appeal, he was already out of time with his intended appeal.

5.  The court record show that the decision was sent on the same day to his last reported address without being returned through undelivered post, and that in the absence of any further details or medical evidence to corroborate his bare assertion, I am not satisfied that he has provided a good or valid reason for his delay, but given that his delay may not be considered as substantial, I propose to focus on the prospect of success of his intended appeal.

6.  However, the Applicant has also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or his affirmation, and at the hearing of his summons he could only repeat his claim that his problem still exists in his home country that he cannot yet return. 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.

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