Bolanos Brudencio Jao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 310/2022

[2023] HKCFI 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 310 OF 2022

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D E C I S I O N

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INTRODUCTION

1.This is the Applicant’s application by summons filed on 19 September 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 17 August 2022 (the “Order”) refusing his application for leave to apply for judicial review (the “Leave Application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 19 August 2021.

2.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is nineteen days out of time.

THE LAW

3.In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and AW v Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

DISCUSSION AND CONCLUSION

4.The Applicant’s explanation for the late appeal as set out in his Summons is that he was and still is in prison custody when he received the Order and Form CALL-1, but by then the time to appeal has just lapsed. He had not produced any documentary evidence such as the Prisoners’ Incoming Mail Register from the correctional institution (which is usually available) in support of his explanation. Even accepting what he said on its face value, he still failed to explain why it took him another nineteen days to make the present application. He has no reasonable explanation for the delay.

5.Giving him the benefit of doubt because of his age and the inconvenience occasioned by his detention, this Court was prepared to condone his delay, if he can show good prospect of success in his intended appeal. Hence, the prospect of his intended appeal becomes the determinant factor for his application for extension of time. In both his Summons and supporting affirmation, he did not advance any grounds of his intended appeal. Thus, this Court gave him direction on 4 January 2023 to file a statement setting out his grounds of the intended appeal by 20 January 2023. The direction letter sent to his reported address care of Tai Tam Gap Correctional Institution was returned through the mail on 7 February 2023 marked “No such person”. As a result of enquiries with the Immigration Department, this Court was advised that the Applicant had been deported on 20 October 2022. Though the direction letter did not reach him, the fact remains that he was late in lodging his appeal and he has advanced no grounds for his intended appeal which show a good prospect of success. As such no extension of time to appeal will be allowed.

The Applicant is not represented