SANJAY SARKAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 598/2019

[2024] HKCFI 2946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 598 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 6 August 2024 for extension of time to appeal the order of this Court dated 27 May 2024 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office.

The Law

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The Applicant is about one and half months out of time. In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.

Length of delay and explanations for the delay

3.  The application for leave to appeal was made two months out of time. The delay is substantial. The Applicant had been given directions to file a statement or affirmation explaining his reasons for the delay, including the date and circumstances when he received the Order and the grounds of his intended appeal. He did not respond.

4.  In his supporting affirmation, the Applicant said that he failed to appeal in time as he had never received the Order. His explanation for the delay is just a bare assertion. The directions were designed to enable him to inform the Court about the date when and the circumstances under which he came to receive the Order or informed of the outcome of his leave application. Without these information, the Court cannot assess the length of the delay and the reasonableness of the explanation. In the absence of his response, this Court could only come to the conclusion that he has no explanation for the substantial delay.

Prospect of success of the intended appeal

5.  Despite clear direction requiring the Applicant to state the grounds of his intended appeal, the Applicant did not put forward any in complying with the directions. In his supporting affirmation he did not advance any ground of his intended appeal or state what was wrong with this Court’s decision and why. In the absence of any valid grounds of appeal, the Court is unable to assess its prospect of success of the intended appeal which is the determinant factor for deciding whether to grant extension of time. His failure to comply with the Court’s direction to state the grounds of his intended appeal is some evidence on which the inference that he has no arguable grounds of appeal may be drawn. I do draw that inference.

Conclusion

6.  The delay is substantial. The Applicant did not advance any ground of his intended appeal in compliance with the Court’s direction. There is no basis for the Court to assess the reasonableness of the delay and the prospect of success of his intended appeal to enable the Court to exercise its discretion to grant him extension of time to appeal. Accordingly, the application for extension of time to appeal is refused.