RE SUKHDEV SINGH

HCAL 963/2018

[2021] HKCFI 1298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 963 OF 2018 

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D E C I S I O N

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1.  On 7 September 2020 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in refusing to re-open 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 28 December 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 September 2020, and hence he was more than 3 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 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 3 months must be considered as inordinate and excessive, for which he first explained in his supporting affirmation that he received the decision late in the mail but without providing any further details or particulars such as when exactly did he receive the decision, or any documentary evidence such as the envelop which contained the decision to show its actual postmark, and at the hearing of his summons he changed his explanation by blaming on the time taken by the Legal Aid Department to process his subsequent application for legal aid which was eventually rejected when by then he was already out of time with his intended appeal, of which again he failed to provide any further details or documentary evidence to corroborate his bare assertions. In the circumstances I am not satisfied that he has provided any good reason for his substantial delay.        

5.  More importantly, nor did he 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 in his affirmation in which he merely repeated his claim of problems in his home country where his life would still be in danger, and at the hearing of his summons he conceded that he did not have any proper ground for his intended appeal. 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.      

6.  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.