Re Fakhruddin Md

HCAL 1251/2018

[2020] HKCFI 1610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1251 OF 2018

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  11 June 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 23 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 filed on 10 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 6 January 2020, and hence he was late by 4 days 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 4 days cannot be regarded as significant, for which he explained in his supporting affirmation that he did not receive the decision until 8 January 2020 when he was informed on the telephone by someone from the court that he became aware of the decision but by then he was already out of time.

5.The court record shows that the decision was sent on the same day to the Applicant at his last reported address which was the same as stated in his present application and which has not been returned through undelivered mail, that it was not the court’s practice to inform applicants of the court’s decisions on the telephone, and in the absence of any further details or evidence in support of his assertion, I am not satisfied that the Applicant has provided any good or genuine reason for his delay, albeit as already noted is insignificant, and I therefore propose to focus on the merit, if any, of his intended appeal. 

6.However, the Applicant did not 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. Nor was he able to do so at the hearing of his summons other than merely repeating his claim of problems in his home country not yet solved that he should be allowed to remain in Hong Kong.  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