Belza Rodolfo Umerez v. Torture Claims Appeal Board

HCAL 1945/2018

[2023] HKCFI 316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1945 OF 2018

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BETWEEN

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D E C I S I O N

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1.On 22 April 2022 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 his 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 25 October 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 expired on 6 May 2022, and hence he was more than 5 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the applicant’s case, a delay of more than 5 months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he was in prison from 2 June 2022 to 30 October 2022 and never received the decision in the mail, and it was later after his release from prison and was transferred to the Castle Peak Bay Immigration Centre (“CIC”) when he was informed by his immigration officer of the decision, but by then he was already out of time with his intended appeal.

5.The court record shows that the decision was sent on the same day of 22 April 2022 to the applicant’s last reported address but was subsequently returned marked unclaimed, but upon enquiry the Immigration Department did confirm that it was the correct address as then reported and maintained by the applicant. In the circumstances and if indeed the applicant had been in prison for the period as alleged, there is no good or valid reason why the decision so sent had been returned and marked unclaimed, and it suspiciously smacked of an attempt to avoid receiving the decision. In the circumstances and in the absence of any further evidence to corroborate his bare assertions, I am not satisfied that the applicant has provided a good or valid reason for his serious delay.

6.More importantly, 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 his affirmation, and at the hearing of his summons he could only repeat his claim as before that his life would still be in danger in 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.

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 appeared in person