Re Bharat Kumar Phagami

HCAL 208/2018

[2021] HKCFI 2234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 208 OF 2018

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D E C I S I O N

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1.On 25 June 2019 Deputy High Court Judge Josiah Lam dismissed the application of the applicant for leave 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 that it was his second such application after his previous one had been refused on 5 January 2018 and against which he never brought any appeal, that there was no good reason for him to make another application for judicial review, and that it was an abuse of process for him to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board.

2.The applicant now by a summons issued on 22 January 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 9 July 2019, and hence he was more than 1 ½ years 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 1 ½ years must be considered as extremely substantial and excessive, for which he claimed in his affirmation that he never received the decision in the mail, and that it was much later when he was informed by his immigration officer of the same, but by then 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 stated in his present application, 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 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 arguable that the decision was unfair or unreasonable either in his summons or his affirmation, and at the hearing of his summons he conceded that he has no valid ground to appeal, but that he simply cannot go back to his home country. 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 either.

7.In the premises, and for the reasons given, it would be futile to extend time for what is clearly a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

The applicant appeared in person