Moktan Bijay Bahadur v. Permanent Secretary for Security

HCAL 447/2022

[2022] HKCFI 3805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 447 OF 2022

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D E C I S I O N

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A.  Introduction

1.By his Form 86 dated 8 June 2022, the Applicant sought leave to apply for judicial review to challenge the Deportation Order made against him by the Permanent Secretary for Security (“PS for S”) on 16 August 2019. The Form 86 asked for a hearing of the application, if leave to apply for judicial review was not granted on the papers. That hearing took place on 8 August 2022.

2.At that hearing, the Applicant appeared in person, and the PS for S was represented by Mr Sunny Li, Senior Government Counsel.

3.At the end of that hearing, I gave my decision (“Leave Decision”), delivered orally and reduced into writing the same day, [2022] HKCFI 2452. In short, I dismissed the application for leave to apply for judicial review on the basis that it was fatally out of time and because the two grounds of review advanced were in any event without merit.

4.Now, by summons dated 3 November 2022, the Applicant applies for an extension of time to appeal from the Leave Decision. The summons simply states (sic) (all capitals in original):

I GET THE HIGH COURT DECISION BUT AFTER THE LIMITATION TIME PASSED. I WANT TO APPEAL. PLEASE GIVE ME TIME TO CHANCE TO APPEAL.

5.The summons is supported by an affirmation of the same date, in which the Applicant again suggests he got the Leave Decision after time passed, and which exhibits the Grounds of Review originally put forward by him (and which I rejected in my Leave Decision as having no merit).

6.However, the Applicant (who acts in person) has failed to appear at the hearing today.

B.  Refusal of Extension of Time

7.Where the Applicant has failed to come to Court to pursue his application, it stands to be dismissed for that reason. Nevertheless, for completeness I would state that the application would fail in any event.

8.The only reason put forward by the Applicant for seeking the extension of time to appeal is his suggestion that he only received the Leave Decision after the time within which he might have appealed had passed. There is clearly no merit at all in that suggestion.

9.First, the Applicant was actually present in Court when the Leave Decision was announced/delivered orally (and he had the benefit of an interpreter available to him). Therefore, on the very day of the hearing, the Applicant knew that his application for leave to apply for judicial review had been dismissed and why it had been dismissed.

10.Secondly, the Applicant has not identified the date when he says he received the Leave Decision (if he means the written decision which was subsequently sent to him). But, I note from the Court file that a copy of the Leave Decision was sent to him by post (to the address provided by him for service) later on the same date as the hearing, namely 8 August 2022.

11.Thirdly, the Applicant has offered no explanation for the passage of time between the (unspecified) date when he says he received the Leave Decision and 3 November 2022, the date of the present summons seeking the extension of time to appeal.

12.In any event, I see no purpose in granting an extension of time to appeal when there is no identified merit in the intended appeal. The Applicant has simply repeated (by the exhibit to his affirmation) the points he made when seeking leave to apply for judicial review, including putting forward the two grounds which simply made no chronological sense, as was explained in the Leave Decision.

C.  Result

13.The Applicant’s application for an extension of time within which to appeal against my Leave Decision dated 8 August 2022 is dismissed.

The applicant, acting in person, did not appear