GHARU VEER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2570/2018

[2023] HKCFI 761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2570 OF 2018

_____________

_____________

_______________

D E C I S I O N

_______________

1.  On 24 March 2022 Deputy High Court Judge P Li refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Director of Immigration (“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 20 October 2022 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 the High Court, Cap 4A expired on 7 April 2022, and hence he was more than 6 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case, a delay of more than 6 months must be considered as extremely substantial and inordinate, for which he first stated in his affirmation that he never received the decision from the court, but at the hearing of his application he changed his explanation in that his wife was then pregnant with their child and was suffering from related medical issues that he was too busy looking after her that he forgot to file his intended appeal within the required period.

5.  The court record shows that the decision was sent on the same day to the applicant’s last reported address which is the same as stated in his present application without being returned through undelivered post, and that even accepting that it is true that his wife might have indeed been suffering from all sorts of medical issues related to her pregnancy which required his full attention at that time, and for which the applicant has not provided any medical evidence to corroborate his bare assertions, I am not convinced that it can be accepted as sufficient justification for his such serious delay.

6.  More importantly, the applicant 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 in which he just stated that he does not agree with the decision but without putting forward any proper ground for his intended appeal, and at the hearing of his summons he just stated that as he now has a family here that he does not want to leave Hong Kong to return to his home country. 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.