Daljit Boparai v. Torture Claims Appeal Board

HCAL 615/2017

[2019] HKCFI 2598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 615 OF 2017

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BETWEEN

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J U D G M E N T

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1.On 28 June 2019, this Court (Hon Yau J) handed down a judgment by way of a CALL-1 Form (“the Judgment”), dismissing the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board which rejected his application for leave to appeal out of time the decision of the Director of Immigration refusing his non-refoulement claim.

2.The facts and the issues in the application, as well as the reasons of the Court in refusing to give leave to the Applicant are set out in the Judgement and the Court is not going to repeat them here. 

3.According to Order 53 rule 3(4) of the Rules of High Court the Applicant has 14 days to appeal against the decision of the Court which time expired on 12 July 2019.  By a summons dated 15 July 2019 the Applicant stated that he was late by 2 days and asked for leave to have his case further processed.  The Court treats this as an application by the Applicant for leave to appeal the Judgment to the Court of Appeal out of time. 

4.It has been held in a number of authorities, such as Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134 and Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157, that in considering whether to extend the 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 putative respondent if extension of time was granted

5.In this case the Applicant was late by 3 days.  He explained in his affirmation that he received the Judgment late. 

6.During the hearing the Applicant says that he only received the Judgment on 12 July 2019 and when he tried to lodge an appeal against the Judgement on 15 July 2019 at the High Court he was told that the time limit to do so had expired.

7.According to the court record the Judgment was posted to the Applicant on 9 July 2019 and that explains why he only received it on 12 July 2019 which was the day when the time limit for lodging the appeal expired. 

8.As pointed out above, one of the factors to consider in an application for an extension of time is the prospects of an applicant’s intended appeal against the decision of the court.  According to a number of authorities, including Re MK HCMP 2609/2016, Islam Raja Rais v Director of Immigration HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226, such factor is a crucial one.  It is also trite law that the Applicant has the burden to satisfy the Court that his intended appeal has good prospects of success. 

9.Although the Applicant in his affirmation and during the hearing has not provided any grounds of appeal, the delay is through no fault of him.  Should the Court refuse his application for leave to appeal out of time it is tantamount to depriving him of his legal right of appeal. 

10.Leave is given for the Applicant to appeal the Judgment to the Court of Appeal out of time and the Applicant is to file the notice of appeal and the supporting affirmation within 2 weeks from the date of this judgment. 

Applicant appeared in person

Putative Respondent and Interested Party absent and not represented