Re Pandey Nitesh Kumar

HCAL 1199/2021

[2022] HKCFI 2069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1199 OF 2021

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  29 June 2022

Date of Decision:  13 July 2022

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D E C I S I O N

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1.On 22 October 2021 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that there was no good reason for his serious delay of more than 2 months with his application, that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 24 November 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 the High Court, Cap 4A ended on 5 November 2021, and hence he was some 19 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 19 days must be considered as substantial or inordinate, for which he explained in his affirmation that he did not receive the decision as he was then in prison without any further details or elaboration.

5.The court record shows that the decision was first sent on the same day of 22 October 2021 to the Castle Peak Bay Immigration Centre (“CIC”) where he was then being detained, but when the Court was subsequently informed by the Immigration Department that the Applicant had then been released, the decision was resent on 2 November 2021 to his new address provided by the Immigration Department without being returned through undelivered post, which would give 16 November 2021 as the last day for the Applicant to file his appeal, but in which case he would still be out of time by about one week which may however not be regarded as substantial or significant. In the circumstances, I propose to focus on the merits or prospect of his intended appeal.

6.However, the Applicant has failed to put 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 that he also failed to attend the hearing of his summons without any explanation. 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, 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