Re Reyes Enrico Karasig

HCAL 967/2017

[2019] HKCFI 2732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 967 OF 2017

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DECISION

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1.On 15 July 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board(“the Board”) in 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 Director/Board or its decision, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 10 September 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 29 July 2019, and hence he was late by 12 days 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 12 days may not be regarded as significant, for which he explained at the hearing that he never received the Court’s decision in the mail, and was only told of the decision sometime later in August 2019 when he attended the Shatin Magistrates’ Court for his offence of overstaying in Hong Kong, and so when he wanted to appeal, he was by then already out of time.

5.He however did not produce any documents evidencing his attendance at the Shatin Magistrates’ Court, and since it was way back in 2008 when he was arrested for overstaying, it could not have been for the offence of overstaying when he attended the Shatin Magistrates’ Court in August 2019, if indeed that was the case.  Furthermore, the record shows that the decision had been sent to his last reported address, which he did confirm at the hearing as correct, and which has never been returned through undelivered post.  That said, given that the Applicant was unrepresented, and as indicated above, a delay of 12 days may not be considered as substantial, I propose to focus on the merits or prospect of his intended appeal.    

6.However, the Applicant did not in his summons or affirmation provide any valid ground 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 notwithstanding that he stated in his affirmation that there is a good ground of appeal, when he was referred to it at the hearing and was invited to put forward such ground, he merely claimed that he does not think that the Court should have accepted the decisions of the Director or the Board in rejecting his claim, but was unable to provide any further particulars or elaboration in support of such argument.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal. 

7.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