RE SIMONA MUNDIA

HCAL 3001/2018

[2020] HKCFI 2715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3001 OF 2018 

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D E C I S I O N

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1.  On 4 June 2020 I refused to grant leave to the Applicant to apply for judicial review of the decisions 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 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 7 July 2020 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 18 June 2020, and hence he was late by 19 days 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 19 days may not be considered as insignificant, for which he explained in his supporting affidavit and at the hearing of his summons that as he was at all material time being detailed at the Castle Peak Bay Immigration Centre (“CIC”), it had taken longer time for him to receive and send out his mails, and after he received the court’s decision, and having decided to appeal against the decision but not knowing how, he wrote on 9 June 2020 to the High Court Registry seeking assistance for what he believed to be an appeal form.

5.  Upon receiving the Applicant’s letter on 11 June 2020, the Registry referred the matter to the Resource Centre for Unrepresented Litigants (“Resource Centre”), and on 15 June 2020 the Resource Centre replied to the Applicant’s request and enclosed a copy of Notice of Appeal together with a leaflet “How to Appeal”.

6.  It appears that by 17 June 2020 the Applicant still had not received the reply from the Resource Centre, he therefore on that day sent another letter to the Registry expressing his concern over the deadline for the filing of his appeal.

7.  His letter reached the Registry on 19 June 2020, which was again referred to the Resource Centre for action, and on 22 June 2020 the Resource Centre sent another copy of Notice of Appeal to the Applicant.

8.  According to the Applicant, it was only on 20 June 2020 that he was given the first reply from the Resource Centre by the immigration officer at CIC, but as he did not know how to complete the enclosed Notice of Appeal or to prepare his proposed grounds of appeal, he then turned to the Justice Centre Hong Kong for assistance, and eventually on 27 June 2020 he signed his affirmation attaching a copy of his draft grounds of appeal.

9.  By then he was already out of time with the filing of his notice of appeal, and therefore on 7 July 2020 he issued the summons now before me for extension of time to file his appeal.

10.  Having examined the copies of documentary evidence produced by the Applicant including those correspondence between him and the Resource Centre, and having taken into account of the fact that he was at all material time being detained at CIC with the necessary restrictions on incoming and outgoing mails and the inconvenience in assessing to legal assistance, I accept the Applicant’s explanation for his delay with the filing of his notice of appeal, and am satisfied that there are justifications to extend time for him to do so.

11.  In the premises and for the reasons given, I grant the Applicant an extension of time to file his notice of appeal within 21 days of this order. I also direct that a copy of this order be served on the Justice Centre Hong Kong which have since been authorized by the Applicant to communicate with the court in respect of his present application.