Re Jagjit Singh

HCAL 118/2019

[2022] HKCFI 3747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 118 OF 2019

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 7 December 2022

Date of Decision: 21 December 2022

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D E C I S I O N

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1.On 19 November 2021 I refused to extend time to the late application of the applicant 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 4 weeks 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 2 August 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 3 December 2021, and hence he was some 8 months 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 8 months must be considered as extremely substantial and inordinate, for which he explained in his affirmation that he was in prison from 20 April 2021 to 19 February 2022 during which he was without legal assistance with his intended appeal.

5.The court record shows that the decision was sent on the same day of 19 November 2021 to the applicant’s last reported address at Castle Peak Bay Immigration Centre (“CIC”) where he was then being detained, and even if he indeed needed legal assistance with his intended appeal, according to his affirmation that he would have been released by late February 2022 to proceed with his appeal, and hence there is no reason or justification why it had taken him a further 5 months to make his present application. In the absence of any further details or clarification from him, and as he also failed to attend the hearing of his summons without explanation, I am not satisfied that the applicant has provided a good or valid reason for his such serious delay.

6.More significantly, the applicant also 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 in his affirmation, and as noted above 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