Re Dhap Aziz Pal Singh

HCAL 261/2018

[2021] HKCFI 1770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 261 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 16 June 2021

Date of Decision: 24 June 2021

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D E C I S I O N

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1.On 16 October 2019 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing 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 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 5 March 2021 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 30 October 2019, and hence he was more than 16 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 more than 16 months must be considered as extremely substantial and excessive, for which he explained at the hearing of his summons that he never received the decision in the mail, and only later when he reported on his recognizance to the Immigration Department that he was informed of the decision, but as he later lost his recognizance paper which he needed to produce to the High Court Registry for identification purpose before he could file his appeal, and that by the time the Immigration Department had issued him a replacement, he was already way out of time with his intended appeal.

5.The court record shows that the decision was sent on the same day to his last reported address which is the same as the one stated in his present application, and if indeed he did lose his recognizance paper and required a replacement from the Immigration Department before he could file his intended appeal, I find it incredible that the Immigration Department would have taken such a long time to do so. In the circumstances and in the absence of any further details or documentary evidence to corroborate his bare assertions, I am not satisfied that the applicant has provided any good reason for his such serious delay.       

6.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 affirmation, and at the hearing of his summons he merely repeated his claim that his problem still exists in his home country that he cannot yet return home. 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.      

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