RE TIJAN CHONGAN

HCAL 1134/2017

[2019] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1134 OF 2017

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D E C I S I O N

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Introduction

1.  The applicant is an illegal immigrant and he lodged a non‑refoulement claim with the Director of Immigration (“the Director”).  The Director rejected his application and he appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  Having considered his evidence, the Board by its Decision dated 29 September 2017 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decisions.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form 86 to apply for leave for judicial review of the Director’s Decisions and the Board’s Decision.  He had appeared before this Court. By Order dated 19 December 2018, this Court refused to grant him leave to apply for judicial review of the Board’s Decision.  This Court had given the reasons for rejecting his application in Form Call‑1 dated 19 December 2018 (“the Court’s decision”).

3.  The applicant intends to appeal to the Court of Appeal against the Court’s decision.  However, he is out of time under Order 53, rule 3(4) of the RHC.  The deadline for him to appeal should be 2 January 2019.  He took out a summons for time extension for his appeal on 16 May 2019.  He is therefore more than four months late.

The applicant’s affirmation

4.  The applicant filed an affirmation in support of his application.  In his affirmation he said that his application was dismissed for want of prosecution, which is not correct.  He further said that 14 days were not sufficient for a litigant acting in person to prepare for the appeal.

5.  The applicant had not identified the reasons for the realistic prospect of success or in what respect this Court had made any mistake or committed any error in refusing leave to him to apply for his judicial review.

Discussion

6.  In Re: Rana Jaswant [2019] HKCA 102, CAMP 160/2018, 6 March 2019, the Court of Appeal held that this Court has the jurisdiction to deal with this application under Order 59, rule 15 of the RHC.  See paragraph 8.1.

7.  In the above judgment, the Court of Appeal also held that to consider whether time extension should be granted, the court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  See paragraph 8.6.

8.  As said before, the applicant is more than four months late.  There is no good reason for his delay.  Nor did he set out any ground in support of his appeal against this Court’s decision.  I consider that he had no reasonable prospect of success of the intended appeal.

9.  In the circumstances, I dismiss his application.