Re Bhupinder Singh

HCAL 794/2017

[2019] HKCFI 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 794 OF 2017

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 28 June 2019

Date of Decision: 21 August 2019

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D E C I S I O N

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1.On 19 March 2019 Deputy High Court Judge Josiah Lam refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-‌refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the 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 dated 4 June 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 2 April 2019, and hence he was late by two months 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 two months cannot be said to be insignificant, for which he merely claimed in his affirmation of the same date that he never received the decision and only found out about it during his report to the Immigration Department on 3 June 2019 without providing any further details or particulars, and as he failed to appear at the hearing of his summons without any explanation despite efforts by the court staff to contact him through his reported address or his given telephone number.  Since there is no indication that he may have moved to a different address or changed his telephone number according to the latest information provided by the Immigration Department, to which he is under a duty to immediatelyinform of any change to his address or contact telephone number, and given the fact that he would have to report to the Department every other week, I am not satisfied in the circumstances that he has provided a good reason for his delay.  

5.More importantly, he did not provide any draft or proposed ground of appeal in his summons to enable the court to assess the merits or prospects of his intended appeal, and in his affirmation he merely claimed to have a good ground of appeal but failed to give any elaboration or particulars of what that may be, and in the absence of any error in the decision being clearly and properly identified by the applicant, 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 be a hopeless appeal.  Accordingly I refuse to his application for leave to appeal out of time, and dismiss his summons.

The applicant was not represented and did not appear