Re Pannu Gurpreet Singh

HCAL 1328/2018

[2020] HKCFI 1964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1328 OF 2018

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D E C I S I O N

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1.On 20 January 2020 I refused to extend time for the Applicant to file his late application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding that there was no good reason for extending the period within which his application may be made due to his failure to provide any valid explanation for his serious delay, that 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 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 10 March 2020 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 High Court, Cap 4A ended on 3 February 2020, and hence he was late by about 5 weeks 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 5 weeks cannot be regarded as insignificant, for which he explained in his supporting affirmation that there was an intervening Chinese New Year Holiday in between during that period, and that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) that he was unable to file his notice of appeal within time.

5.According to the record the Applicant was then indeed being detained at CIC, but more importantly, the deadline for him to file his notice of appeal in fact fell after the General Adjourned Period announced by the Judiciary due to the Covid-19 pandemic resulting in general closure of the court and tribunal registries from 29 January 2020 to 3 May 2020 which may have hindered the filing of his notice of appeal within the required period.

6.Furthermore, the Court of Final Appeal has recently held in the cases of H v Director of Immigration and AH v Director of Immigration, FACV 1 & 2 of 2020, [2020] HKCFA 22, 14 July 2020, that leave to appeal is not required against a decision not to grant an extension of time to apply for leave to apply for judicial review and to which s 14AA of the High Court Ordinance, Cap 4 does not apply by reason of Order 59 rule 21(1)(g) of the Rules of the High Court, Cap 4A which provides that a person does not require leave to appeal against an order refusing to grant leave to apply for judicial review.   

7.In the premises, and for these reasons I allow the Applicant’s application and extend the period for him to file his notice of appeal against my decision of 20 January 2020 within 14 days from today.  

The applicant was not represented and did not appear