Re Turbat Undrakhbayar

HCAL 1309/2018

[2020] HKCFI 2166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1309 OF 2018 

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D E C I S I O N

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1.On 8 January 2020 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 2 June 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 22 January 2020, and hence he was late by more than 4 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 4 months must be considered as substantial or excessive, for which he explained that it was due to the Covid-19 pandemic that he was unable to file his appeal within time but without providing any further details as to how he had been so affected with the filing of his appeal.

5.While I accept that the current Covid-19 pandemic indeed has impacted on the general mail service and the operation of the courts and registries, but none of these had yet to occur before the 14-day period for the Applicant to file his notice of appeal was to expire on 22 January 2020, and that legal proceedings were not generally adjourned by the Judiciary until 29 January 2020 which ended on 3 May 2020 when the Applicant still failed to make any attempt to file his appeal until one month later on 2 June 2020, of which I am not satisfied that he has provided any valid explanation for his such serious breaches.      

6.More importantly, nor did he in his summon or supporting affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, while in the proposed grounds of appeal which he produced at the hearing of his summons, the Applicant merely repeated his claim that his life would be in danger if refouled to his home country without identifying any error in the decision which may reasonably be arguable for his intended appeal.  As such 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