Re Manwinder Singh

HCAL 509/2017

[2022] HKCFI 2352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 509 OF 2017

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  27 July 2022

Date of Decision:  10 August 2022

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D E C I S I O N

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1.On 8 June 2018 I refused to grant leave to the Applicant 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 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 4 February 2022 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 22 June 2018, and hence he was more than 3 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 3 years must be considered as extremely substantial or inordinate, for which he explained in his summons that he had had an accident last year which fractured his left leg, for which he exhibited some medical appointment slips and a medical report, and at the hearing of his summons he confirmed that the accident occurred in February 2020, and that he being unrepresented was not aware of the rules on the filing of appeal.

5.The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and while I accept from his medical evidence that he indeed had an accident and broke his leg in February 2020, but that would still have put him more than 1 ½ years late with his intended appeal prior to his accident that it would still be considered as an unacceptably substantial and inordinate delay for which he has no explanation. As such I am not satisfied that he has provided any good or valid reason for his such serious delay.

6.I should also note from his medical report dated 17 November 2017 that the Applicant had been receiving psychiatric service since 2012 due to unstable emotion, paranoid and hallucinations of hearing voices caused by excessive alcohol consumption, and was then diagnosed to be suffering from paranoid schizophrenia and alcohol dependent syndrome, but was not considered as mentally incapable of understanding or managing his legal and asylum applications, of which I also note from his previous leave application before me that no such issue over his mental capacity had ever been raised by his lawyer during the screening of his non-refoulement claim either before the Director or the Board, and given his normal appearance before me in his present application, I am satisfied that there is no question over the mental capacity of the Applicant that would require consideration in his present application.

7.As for the prospect of his intended appeal, 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, and at the hearing he just stated that he does not want to 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.

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 appeared in person