SUBRAMANIAN SUDHAGAR v. TORTURE CLAIMS APPEAL BOARD AND ANTOHER

HCAL 1854/2018

[2021] HKCFI 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1854 OF 2018

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J U D G M E N T

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1.  The Applicant first applied in 2016 to the Court of First Instance for leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non Refoulement Claims Petition Office (“the Appeal Board”) which rejected his non-refoulement claim and his application was given the case number HCAL 107/2016. By a CALL-1 Form dated 26 May 2017 the application was refused by the Court (“the first decision”). The facts and issues of the case are set out in the Form and this Court is not going to repeat them here.

2.  By a Form 86 dated 6 September 2018 the Applicant applied for the second time leave to apply for judicial review of the decisions of the Director and the Appeal Board in respect of his non-refoulement claim, which was the same subject-matter as his first application.  As it was not legally open for the Applicant to do so this Court dismissed his application at the hearing on 29 November 2018 and the judgment by way of CALL-1 Form (“the judgment”) was handed down on 13 March 2019 (“the second decision”).  By a summons filed on 28 August 2020 the Applicant applied for leave to appeal this decision out of time. 

3.  According to Order 53 rule 3(4) of the Rules of High Court the Applicant has 14 days to appeal the second decision which time expired on 27 March 2019. 

4.  It has been held in a number of authorities, such as Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134 and Wong YukManv Ng Leung Sing & Anor [2016] HKCU 157, that in considering whether to extend the time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to:

(1)  the length of the 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. 

5.  In this case the Applicant is late by about 8 months.  He explains in his affirmation that as he did not know English and had no money to obtain proper help regarding the procedure of appeal he only came to know that he could appeal the second decision after he had asked people around.  By that time the 14-day time limit had expired. 

6.  He tells the Court during the hearing that he could not leave Hong Kong because of the Covid-19 and his life would be in danger should he return to India. 

7.  The Applicant made 2 applications for leave to apply for judicial review of the decisions of the Director and the Appeal Board in respect of his non-refoulement claim.  He did not appeal the first decision and, instead, made a second application 16 months after the decision.  He gives no explanation in the affirmation why he had not lodged any appeal against the first decision.  He also fails to do so during the hearing. 

8.  What the Applicant tells in his affirmation and during the hearing is totally unbelievable.  If he was minded to ask people around as to how he could deal with the decision of the Court in rejecting his application for leave to apply for judicial review of the decisions of the Director and the Appeal Board in respect of his non-refoulement claim he would have no difficulty to find out that he could lodge an appeal after the first decision had been made.  He would not have made the second application. 

9.  The reasons he gives that he did not know English and did not have the financial means to seek legal advice are certainly not an acceptable excuse for the delay.  He was able to follow the correct procedure to take the decisions of the Director and the Appeal Board to the Court of First Instance for judicial review.  He was also able to follow the proper procedure to make the present application for leave to appeal out of time by issuing the correct summons and filing the necessary affirmation.  It must follow that if he had prosecuted his application with reasonable diligence he should have no difficulty finding out the correct procedure of appeal and would have been able to file his notice of appeal against the first decision within the time limit. 

10.  As pointed out above, one of the factors to consider in an application for an extension of time is the prospects of an applicant’s intended appeal against the decision of the court.  According to a number of authorities, including Re MK HCMP 2609/2016, Islam Raja Rais v Director of Immigration HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226, such factor is a crucial one.  It is also trite law that the Applicant has the burden to satisfy the court that his intended appeal has good prospects of success. 

11.  The Applicant has not provided any ground of appeal against the first or the second decisions in his affirmation.  During the hearing, the Applicant supplements what he says in the affirmation by saying that his life would be in danger if he was to return to India.  No particulars are given. 

12.  The Court, as pointed out above, is of the view that the reason for the delay of the Applicant in filing the notice of appeal is unsustainable and, more importantly, his intended appeal has no prospects of success.  It serves no meaningful purpose to extend the time for appeal.  The application for leave to appeal out of time is refused and the Applicant’s summons is dismissed.