Case Document

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HCAL 149/2018

[2021] HKCFI 1124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 149 OF 2018

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RE:

PARAMJIT SINGH

Applicant

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 8 April 2021

Date of Decision: 29 April 2021

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D E C I S I O N

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1.On 25 October 2019 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“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 6 November 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 8 November 2019, and hence he was almost 1 year late 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 almost 1 year must be considered as extremely substantial and excessive, for which he stated in his supporting affirmation as follows:

“ I am the applicant herein. The decision made by the High Court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did Not receive any correspondence from the High Court regarding the Judicial Review be refused as I was in custody of Correctional Services Department. I humbly request the Court to allow me to appeal out of time and give a chance to explain.”

5.The applicant’s explanation seems to be that being an unrepresented litigant, he was not aware of the rule for the filing of an appeal within 14 days of the decision, and that he never received the decision from the court as he was in the custody of the Immigration Department.

6.Ignorance of the rules of course cannot be accepted as any reason or excuse for their non-compliance, while the court record shows that the decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post, and in the absence of further details or documentary evidence to corroborate his bare assertion such as when he was in custody and when he was released, I am not satisfied that he has provided a good or valid reason for his such serious delay.

7.More importantly, nor did he put forward any proper or valid 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 either in his summons or in his affirmation why he thinks that the decision was reached unfairly, while he had never requested any oral hearing for his leave application, nor did he clarify what situation in his home country that he had wanted to make, and that he also failed to attend the hearing of his summons without any explanation. As such 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.

8.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.