Re Lachhman Singh

HCAL 276/2019

[2022] HKCFI 2884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 276 OF 2019

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 14 September 2022

Date of Decision: 27 September 2022

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D E C I S I O N

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1.On 16 February 2022 I refused to extend time to the late application of the applicant for leave 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 torture claim upon finding that there was no good reason for his extremely serious delay of more than 6 years 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 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 22 April 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 2 March 2022, and hence he was more than 7 weeks 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 7 weeks must be considered as very substantial and inordinate, for which he stated in his supporting affirmation as follows:

“I am the applicant herein. The decision made by the High court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that was a litigant in person & unrepresented, My appeal is out of time because I did not received any correspondence from the court regarding my leave to apply for Judicial Review be dismissed. I only got to know about it from my immigration officer upon reporting. Later, Given the GAP, I was unable to do so. I humbly request the court to allow my appeal out of time and accept my explanation.”

5.The court record shows that the decision was sent on the same day of 16 February 2022 to the applicant’s last reported address which is the same as stated in his present application, while the GAP imposed earlier this year due to a surge of the Covid-19 infections came only after the deadline for him to file his intended appeal had expired, 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 or valid reason for his serious delay.

6.More significantly, nor has the applicant 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 in his affirmation, while his complaint of not being given “an opportunity to clarify” his case is untenable as he never requested any oral hearing for his leave application, while 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