RE SANDEEP

HCAL 51/2018

[2020] HKCFI 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 51 OF 2018

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D E C I S I O N

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1.  On 10 May 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 his 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 28 October 2019 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 24 May 2019, and hence he was late by more than 5 months with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal 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 more than 5 months must be regarded as very substantial and excessive, for which he explained in his supporting affirmation that he only received the decision on 24 October 2019 when he attended at the court for a copy.

5.  A search of the court record reveals that the decision was sent on 10 May 2019 to the Applicant at Tai Lam Correctional Institution where he was then believed to be detained, but upon the decision being returned through undelivered post, the court was subsequently informed that the Applicant was in fact already released on 30 April 2019 but without leaving any forwarding address.

6.  Upon further inquiries made with the Immigration Department and with their assistance, the Applicant was eventually contacted to attend at the court for a copy of the decision, which he subsequently did on 24 October 2019, and on 28 October 2019 he issued a time summons for extension of time to appeal, but he failed to attend the hearing of his summons without any explanation, and at the subsequent second hearing at his request, he was unable to provide any further details or particulars such as where he had moved after his release from detention, or why he did not inform the court of his new address for the purpose of service, which was his responsibility to so inform the authorities and the court, for which he has only himself to blame for any delay in receiving any documents from the court including the decision so caused by his failure to do so.

7.  While it is true that if indeed he only received the decision on 24 October 2019, the 14-day period for him to file his appeal would not expire until 7 November 2019, but for whatever reason he may have, it is a fact that by then he still had not filed any notice of appeal, and has since therefore been out of time with his intended appeal.  In the circumstances I am not satisfied that he has provided any good reason for his delay.      

8.  More importantly, nor did he in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and at the hearing despite being invited by the court to do so, he could only repeat his claim that his life would be in danger in his home country and that he should be given more time to stay in Hong Kong until his problems at home have been resolved.  At 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. 

9.  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.