Re Roop Basant

HCAL 828/2018

[2021] HKCFI 1785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 828 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 12 January 2021 Deputy High Court Judge C P Pang refused to extend time 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 appeal regarding his non-refoulement claim upon finding that there was no good reason for his serious delay, 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 15 April 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 26 January 2021, and hence he was more than 2 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 2 months must be considered as substantial, for which he explained at the hearing that after he was refused leave to apply for judicial review, he had intended to leave Hong Kong to return to his home country, but he then had some medical problem with one of his legs which he has since been receiving medical treatment in a hospital here, and hence he is unable to leave until he has completed his medical treatment in Hong Kong, and for which he was advised by his friend to launch his appeal against the decision so as to be able to remain in Hong Kong for the medical treatment.

5.The court record shows that the decision was sent to the applicant’s last reported address which is the same as stated in his present application without being returned through undelivered post, while his bare assertion is unsupported by any medical evidence but even if true clearly cannot be accepted as any good reason for his 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 just stated that he needs to remain in Hong Kong to complete his medical treatment. 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