Case Document

100%Judiciary

HCAL 2320/2018

[2021] HKCFI 1238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2320 OF 2018

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RE:

SHARMA SONU

Applicant

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 28 April 2021

Date of Decision: 11 May 2021

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D E C I S I O N

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1.On 4 June 2020 I dismissed the applicant’s application for leave to apply for judicial review of the second decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal regarding his non-refoulement claim (BOR 2 Risk) upon his written confirmation that he did not have any issue with the decision of the Board or of the Director of Immigration (“Director”) and that he just wanted to withdraw his application so that he could go back to his home country.

2.The applicant now by a summons issued on 17 December 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 18 June 2020, and hence he was about 6 months 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 6 months must be considered as inordinate 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 Court regarding the Judicial Review be refused. I humbly request the court to allow my appeal out of time.”

5.At the hearing of his summons the applicant further clarified that after have withdrawn his leave application, he had intended to leave Hong Kong to return to Nepal, but he was unable to do so due to the Covid-19 pandemic, and then shortly thereafter in July 2020 he was arrested by police for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 4 months, but upon his release from prison in November 2020, he had a change of mind and decided that he wants to remain in Hong Kong, and so he sought legal advice and was told that he should appeal against the decision allowing the withdrawal of his leave application.

6.A change of mind about one’s legal proceedings however cannot be accepted as any valid reason or justification for procedural breaches, and as 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, even if the applicant’s uncorroborated bare assertions were indeed true including his subsequent arrest and imprisonment, I do not find any of them justified 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 in his summons or in his supporting affirmation as noted above in which he failed to provide any particulars or elaboration as to why that decision in allowing the withdrawal of his application at his request was unfair, or why it was necessary to hold any oral hearing for his such request, nor did he at the hearing of his summons make any clarification of his case or the situation in his country as he so claimed of being denied the opportunity to do in his said affirmation.

8.As such and in the absence of any error in the decision being clearly and properly identified by the applicant, or of any evidence that he did not know what he was doing when he made his request to withdraw his application, or of anything to show that it was not a valid withdrawal, I do not find any reasonably arguable ground for him to challenge that decision, nor do I see any prospect of success in his intended appeal.

9.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.