RE ARALIYA KANKANAMGE NADEEP SURANGA

HCAL 867/2019

[2021] HKCFI 3221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 867 OF 2019

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D E C I S I O N

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1.  The Applicant, by summons dated 3 August 2021 applies for extension of time to appeal against the decision of Deputy High Court Judge To (“the Court”) given on 30 June 2021 refusing to grant leave to the Applicant for judicial review of the decision of the Director of Immigration (“the Director”)refusing his claim for non-refoulement protection.

2.  The 14 day period for the Applicant to file his appeal against the decision of the Court ended on 14 July 2021 and hence he was about half a month late with his intended appeal.    

3.  In considering whether to extend time for appealing against a decision refusing to grant leave to apply for judicial review, a 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.

4.  In the Applicant’s case, the delay of half a month is not insignificant. The Applicant explained the delay by saying he found the order letter late in his letter box.

5.  The court record shows that although the order itself was dated 30 June 2021, the backsheet of the order stated that it was filed on 2 July, Moreover, the CALL-1 of the Court in this case was dated 6 July 2021 and was sent to the Applicant on the same day it was made.  I cannot therefore rule out that the order was not also sent to the Applicant together the CALL-1 form. 　Even so, the Applicant ought to have received them before the 14 day period of the appeal expired since the Applicant did confirm receiving the order in his letter box.

6.  As for the prospect of the intended appeal, this case is unlike the normal run-of-the mill cases where the application for judicial review to the Court results from a decision by the Torture Claims Appeal Board (“the Board”). 　Here there was no appeal by the Applicant to the Board, but that the Applicant applied for judicial review against the decision of the Director (by Notice dated 13 October 2017) refusing to allow the Applicant to make a subsequent claim under section 37ZE of the Immigration Ordinance due to the fact that an earlier claim for non-refoulement made by the Applicant on 3 November 2005 had been withdrawn by him on 15 September 2011 and he had been repatriated back to Sri Lanka.   

7.  The Court decided that the Applicant was one year and two months late in seeking judicial review and was thus woefully out of time and the application totally misconceived.　 The Court further considered the decision of the Director and took the view that the Applicant had no prospect of success in the intended application for judicial review.

8.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important : the court will not grant extension for a hopeless appeal to be pursued: see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.  This being an application for extension of time to appeal against the decision of the Court, it is for the Applicant to show that there is a reasonably arguable appeal.  This he has not done.

10.  In the premises it would be futile to extend time for what would appear to be a hopeless appeal.  Accordingly, I refuse the Applicant’s application for extension of time to appeal against the decision of the Court and dismiss the summons.