Re Sonu Alias Sonu Rana

HCAL 123/2018

[2020] HKCFI 1960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 123 OF 2018

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D E C I S I O N

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1.On 17 June 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 15 May 2020 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 1 July 2019, 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 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 more than 10 months must be considered as very substantial and excessive, and even discounting the General Adjourned Period announced by the Judiciary due to the Covid-19 pandemic with general closure of the court and tribunal registries from 29 January 2020 to 3 May 2020, it would still amount to a serious delay of almost 7 months, for which the Applicant explained at the hearing of his summons that he was then prepared to leave Hong Kong to return to his home country and hence he did not take any step to file any appeal, but later when he realized that his problem back home had still not been resolved, he therefore decided to remain in Hong Kong to proceed with his appeal but by then he was already out of time.

5.Even assuming what he said is true, and there is no evidence other than his words, a change of mind regarding one’s intention to appeal in such circumstances cannot be accepted or justify such serious procedural breach by the Applicant.

6.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 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