RE VISHWAKARMA RAMESH KUMAR

HCAL 523/2017

[2021] HKCFI 6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 523 OF 2017

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D E C I S I O N

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1.  On 7 June 2018 Deputy High Court Judge Woodcock refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding 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 of Immigration 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 8 September 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 21 June 2018, and hence he was late by more than 26 months 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 more than 26 months must be considered as extremely serious and excessive, for which he explained at the hearing of his summons that he did not appeal at that time because he had intended to return to his home country, but later when he realized that his problems back home still existed and that he could not leave, but when he decided to go ahead with his appeal, he was already way out of time.

5.  A change of mind about one’s legal proceedings which led to delay however can never be accepted as any good or valid reason for procedural breaches, especially one as blatant as the Applicant’s delay with his intended appeal.      

6.  More importantly, nor did the Applicant 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, and at the hearing of his summons he merely repeated his claim that his problems still exist in his home country and that he needed more time to remain in Hong Kong. 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, 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.