Re Tholiya Ajay

HCAL 1007/2017

[2019] HKCFI 2203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1007 OF 2017

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DECISION

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1.On 3 August 2018 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal regarding 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 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 25 July 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 expired on 15 September 2018 after taken into account of the court’s vacation, and hence he was late by more than 10 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 M K 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 more than 10 months must be considered as very substantial or excessive, for which he explained at the hearing of his summons that he never received the decision as he had since September 2018 been detained by the Immigration Department and was informed of the decision only much later.  As the court’s record revealed that the decision was sent to the applicant on the same day of 3 August 2018 and has not been returned through undelivered post, hence it would have reached him well before his detention in September 2018, and even if indeed the decision never reached him prior to his detention, in the absence of any reliable or objective evidence that he was indeed informed by the Immigration Department of the decision only many months later, I am not satisfied that he has provided any good or valid reason for his such serious delay.

5.More importantly, nor did he 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, and at the hearing he simply stated that as he still has problems back home not yet resolved, he just wants to remain in Hong Kong for a longer period.  As such and in the absence of any error being identified by the applicant in the decision, I do not 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 his application for leave to appeal out of time, and dismiss his summons.

The applicant appeared in person