Re Agara Isaiah Bishop

HCAL 977/2017

[2020] HKCFI 1609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 977 OF 2017  

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  11 June 2020

Date of Decision:  28 July 2020

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D E C I S I O N

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1.On 2 October 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 of Immigration 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 issued on 24 December 2019 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 16 October 2019, and hence he was late by more than 2 months with his intended appeal. 

3.In considering whether to extend time for appealing against a decision refusing leave to apply 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 2 months and 8 days must be considered as substantial or excessive, for which he explained in his supporting affirmation that he was unaware of the rule regarding the 14-day period as he was a litigant in person, and that he never received the decision though the mail and was not aware of it until when he later reported to the Immigration Department on his recognizance that he was so informed by an immigration officer.  Ignorant of the rules of course can never be accepted as a reason for their non-compliance, while the court record shows that the decision was sent on the same day to the Applicant at his last reported address of which he confirmed at the hearing of his summons had remained the same at all material times and that it has never been returned through undelivered mail, and in the absence of any further or documentary evidence in support of his claim, I am not satisfied that he has provided any good reason for his 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 in his affirmation he merely made broad and vague assertions that he was not allowed “an opportunity to clarify [his] case the situation in [his] country and that the decision relied heavily on COI provided by the Immigration Department” without providing any particulars or specifics or elaborations in support of such assertions.

6.The fact is that the Applicant had never requested any oral hearing for his leave application for judicial review, and that even in his application now before me, he merely claimed at the hearing to have additional evidence regarding the situations in his home country but which he still has not obtained and needs more time to do so.  As such and in the 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 extension of time to appeal, and dismiss his summons.     

The applicant appeared in person