RE CERVANTES RONEL VILLACERAN

HCAL 1072/2018

[2021] HKCFI 2819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1072 OF 2018

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D E C I S I O N

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1.  On 13 May 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal/petition regarding his non-refoulement claim upon finding that 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 (“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 27 July 2021 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 27 May 2021, and hence he was 2 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 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 The 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 2 months must be considered as substantial, for which he explained in his supporting affirmation that he did not receive the decision in the mail, but when he was asked for clarification at the hearing of his summons, he admitted that he did receive the decision in the mail, but as he was not aware of the 14-day rule for the filing of an appeal, and as his mind was not clear then, he did not know how to go about filing his appeal until much later, and by then he was already out of time with his intended appeal.  

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and as ignorance of the law can never be accepted as an excuse for its non-compliance, I am not satisfied that the Applicant has provided any good reason for his delay.

6.  More importantly, the Applicant failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or his affirmation, and at the hearing of his summons he just repeated his claim that his life is still in danger in his home country that he cannot yet return. 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, and for the reasons given, 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.