Re Walgampolage Sirinuwan Osada Buddhika Perera

HCAL 858/2017

[2020] HKCFI 2848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 858 OF 2017 

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 8 October 2020

Date of Decision: 19 November 2020

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D E C I S I O N

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1.On 13 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 8 July 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 27 June 2019, and hence he was late by 11 days 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 11 days may not be considered as significant, for which he explained at the hearing of his summons that he never received the decision in the mail, and it was only on 3 July 2019 that he was able to obtain a copy from the Registry when by then he was already out of time with the filing of his appeal, and was required by the Registry to issue his present summons to seek extension of time.

5.The court record indeed shows that the decision sent on 13 June 2019 to his last reported address was returned through undelivered post on 2 July 2019, and it was only after being contacted by the Registry that the Applicant came to collect his copy of the decision on the following day on 3 July 2019.

6.At the hearing the Applicant also confirmed that he has not changed his address at all material times and that he still resides at the same address, as evidenced by that as stated in his summons and supporting affirmation, but that he does not know why the decision sent to him in the mail never reached him and was subsequently returned through undelivered post.

7.In the circumstances and giving the Applicant the benefit of the doubt, I am prepared to accept his explanation that the decision never reached him in the mail and that he only received it on 3 July 2019, and hence he could not have been out of time with the filing of his appeal on 8 July 2019 when he was required to issue his summons for extension of time, and somehow for various reasons including the subsequent onset of the Covid-19 pandemic, it was not fixed for hearing until now before me.

8.In the premises and for the reasons given, I grant the Applicant an extension of time to file his notice of appeal within 14 days of this order.

The applicant appeared in person