Re Khan Kamran

HCAL 487/2018

[2020] HKCFI 1612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 487 OF 2018  

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  8 July 2020

Date of Decision:  28 July 2020

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D E C I S I O N

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1.On 19 December 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration 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 23 January 2020 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 High Court, Cap 4A ended on 2 January 2020, and hence he was late by about 3 weeks 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 about 3 weeks cannot be regarded as insignificant, for which he explained at the hearing of his summons that he never received the decision in the mail and hence was not aware of it until sometime in late January 2020 when he reported on his recognizance that he was informed by an immigration officer of the court’s decision, but by then he was already out of time.

5.The court record however shows that the decision was sent to the Applicant’s last reported address on the same day and has never been returned through undelivered post, and if he had moved to a new address it was his duty to so inform the authority as soon as practicable.  In the circumstances and in the absence of any further evidence or information from the Applicant in support of his claim, I am not satisfied that he has provided any good or valid reason for his delay.  

6.More importantly, nor did he in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and at the hearing of his summons he merely repeated his claim that his problems in his home country have remained unresolved.  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, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for extension of time to appeal, and dismiss his summons.

The applicant appeared in person