Cepi Kurniawan v. Torture Claims Appeal Board

HCAL 548/2021

[2023] HKCFI 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 548 OF 2021

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BETWEEN

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D E C I S I O N

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1.On 7 October 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 13 February 2023 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 21 October 2022, and hence he was some 3 months and 3 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 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 3 months and 3 weeks must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he never received the decision in the mail as he has been detained at the Castle Peak Bay Immigration Centre (“CIC”) for 2 months that he was only informed by his wife after she received some letters sent by the Court to their residential address.

5.The court record shows that the decision was sent on the same day of 7 October 2022 to the applicant’s last reported residential address without being returned through undelivered post, and as he claims to have been detained at CIC for only 2 months which would put his detention from early 2023, which follows that at the time of the posting of the decision in early October 2022 to his residential address, he should and would have received it in the mail. As such and in the absence of any evidence to corroborate his bare assertion, I do not accept that the applicant has provided any 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 of fear of harm form his creditor over his unpaid debts. 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