VALDEZ JEYSON BALDO v. TORTURE CLAIMS APPEAL BOARD

HCAL 621/2019

[2023] HKCFI 310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 621 OF 2019

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BETWEEN

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D E C I S I O N

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1.  On 25 October 2022 I refused to grant leave to the applicant to apply for judicial review of the second decision of the Torture Claims Appeal Board (“Board”) in refusing the late filing of his notice of appeal regarding his non-refoulement claim upon finding that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his 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 11 November 2022 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 the High Court, Cap 4A expired on 8 November 2022, and hence he was 3 days 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case, a delay of 3 days may not be considered as significant, for which he explained at the hearing of his summons that he had moved to a new address without informing the court, and when he learnt of the decision being sent to his former address, he had had to return there to retrieve it, but 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 if he failed to inform the court of his new address which was his duty to do so as soon as practicable and therefore received the decision late, he had only himself to blame for the delay, but given the relative insignificance thereof, I propose to focus on the merits or prospect of his intended appeal.

6.  However, the applicant did not 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 affidavit in which he just stated he was not satisfied with the decision but without putting forth any reasonably arguable grounds, and at the hearing of his summons he could only repeat his claim as before that his life would still be in danger in his home country that he cannot 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, and accordingly I refuse his application for extension of time to appeal and dismiss his summons.