Re Deepak Kumar

HCAL 361/2021

[2022] HKCFI 478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 361 OF 2021 

_____________

_____________

Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 9 February 2022

Date of Decision: 23 February 2022

_____________

D E C I S I O N

_____________

1.On 23 July 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding 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 of Immigration (“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 9 August 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 6 August 2021, and hence he was 3 days 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 3 days may not be considered as significant, for which he explained in his affirmation that he “did not get the order on time” but without any further details or particulars, while in the document exhibited to his affirmation, he just stated that he received the decision on 7 August 2021 when he was then already out of time with his intended appeal.

5.The court record shows that the decision was sent on the same day of 23 July 2021 to the Applicant’s last reported address without being returned through undelivered post, and in the absence of any documentary evidence such as the envelop which contained the decision to show the actual postmark, and as he failed to attend the hearing of his summons without any explanation, I am not prepared to accept the Applicant’s bare assertions, but given the relative insignificance of his delay, I propose to focus on the prospect of success of his intended appeal.

6.The Applicant did not, however, in his summons or affirmation set out any proposed ground of appeal, but as noted above, in his affirmation he attached a document under the title of “Grounds on which relief is sought”, in which he stated as follows:

“There are many more unacceptable and unexplainable grounds, which are shown to refuse my leave application. I am a genuine non-refoulement claimant who faced all the dangerous problems, harassment and torture in India. I am unable to find any place to stay safely in my country, so I fled abroad to save my life. I think I was the luckiest man who succeeded to escape from danger life and still alive to day. If I did not run away, I certainly would have killed by my enemy.”

7.It is therefore plain that the Applicant just repeated his claim as before but without putting forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or his affirmation, and as noted that he also failed to attend the hearing of his summons without any reason. 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.   

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

The Applicant was not represented and did not appear