Re Bahadur

HCAL 243/2018

[2020] HKCFI 2165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 243 OF 2018

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Decision:  8 September 2020

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D E C I S I O N

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1.On 30 June 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 Torture Claims Appeal Board (“the Board”) in refusing to allow his late filing of his appeal against the decision of the Director of Immigration (“the Director”) regarding his non-refoulement claim upon finding that there was no good reason for his more than 3 months’ delay with his application, 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 16 July 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 14 July 2020, and hence he was late for 2 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 2 days cannot on any view be considered as significant, for which he explained in his affirmation that as he had been detained at Castle Peak Bay Immigration Centre (“CIC”) that there were delays in arranging for him to file his appeal which accounted for the slight delay.

5.While it is not clear whether he was indeed then still being detailed at CIC as the address given in both his present summons and his supporting affirmation was one at Yau Ma Tei, Kowloon, I note that his supporting affirmation was made with Hindi interpretation provided for him at the High Court Registry on 13 July 2020 which was then still within the 14-day period for him to file his appeal, but somehow his summons was issued only on 16 July 2020, which may be due to the fact that it was then still regarded as an interlocutory appeal which would require leave to do so under section 14AA(1) of the High Court Ordinance, Cap 4 until only recently on 14 July 2020 when it was overruled by the Court of Final Appeal in H v Director of Immigration and AH v Director of Immigration, FACV 1 & 2 of 2020, [2020] HKCFA 22.

6.In the circumstances, and given the insignificance of his delay, plus the impacts of the current Covid-19 pandemic on the mail service and/or the court registries during the material time, I am prepared to accept the Applicant’s explanation for the slight delay with his intended appeal.           

7.Accordingly, and in view of the current public health situation due to the Covid-19 pandemic, I propose to deal with the matter on paper, and extend time for the Applicant to file his notice of appeal within 14 days of this order.  

The applicant is unrepresented