RE RAJEEV KUMAR

HCAL 344/2018

[2020] HKCFI 52

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 344 OF 2018

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DECISION

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1.  On 25 September 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding no ground had been put forward by him for his intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 24 October 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 9 October 2019, and hence he was late by 15 days with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal 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 15 days may not be regarded as substantial, for which he explained at the hearing that he never received the decision in the mail and it was only on 24 October 2019 when he attended at the Court Registry for a copy that he immediately issued the summons now before me.

5.  A search of the court record reveals that the decision sent out by post to the Applicant on 25 September 2019 had in fact been returned undelivered on 22 October 2019, and for which the Applicant was subsequently notified to come to the Registry for a copy.  In the circumstances I am prepared to accept that he had good reason for his delay with his intended appeal. 

6.  However, he did not in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, nor was he able to do so at the hearing of his summons other than just repeated his claim that his problem in his home country has not yet been resolved and that he should be allowed to remain in Hong Kong for a longer period.  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, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.