RE GURUNG KAPIL

HCAL 561/2017

[2019] HKCFI 1327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 561 OF 2017

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D E C I S I O N

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1.  On 1 February 2019 I refused to grant leave to the applicant to apply for judicial review of the Torture Claims Appeal Board’s decision in dismissing his appeal/petition regarding his non-refoulement claim upon finding none of the grounds put forward by him as reasonably arguable or with any prospect of success in his intended application.

2.  The applicant now by a summons issued on 20 February 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 15 February 2019, and hence he was late by five days.

3.  In considering whether to extend 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 respondent if an extension of time were granted.

4.  In the applicant’s case a delay of five days may not be regarded as significant, for which he explained at the hearing that he did not receive the decision from the court as he was then moving to a new address and was not able to inform the court in time and hence was not aware of the decision until later when he was able to retrieve it at his former address.  Given the short delay I was prepared to accept his explanation, and proceeded to consider the merits of his intended application.

5.  However, he did not provide any draft or proposed ground for his appeal, or any particulars as to any error in the decision or why it was unfair or unreasonable, of which he insisted that he was still waiting for his family back home to send him further supporting evidence for his claim, but he was unable to explain why he had not done so over the past six years since his arrival in Hong Kong, and in the absence of any arguable grounds from him I am unable to see any prospect of success in his intended appeal.

6.  In the premises it would be futile to extend time for what appears to me a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.