Re Mudassar Ijaz Alias Muhammad Afz

HCAL 322/2018

[2020] HKCFI 2672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 322 OF 2018  

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 30 September 2020

Date of Decision: 2 November 2020

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D E C I S I O N

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1.On 8 October 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 22 July 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 22 October 2019, and hence he was late by 9 months 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 9 months must be considered as very substantial or excessive, for which he explained in both his affirmation and at the hearing that after he received the decision sometime in October 2019, he did not know what to do with it, and so he had to get help from his friend who however took a long time to prepare the documents for his appeal which eventually caused him to be way out of time with his intended appeal.

5.Ignorant of the law cannot of course be accepted as an excuse for procedural breaches, not to mention such a serious one, and while accepting that most unrepresented applicants in similar circumstances may deserve some indulgences from the court, but not in the case of the Applicant and with such serious delay. In the premises I am not satisfied that the Applicant has provided any good or valid explanation for his delay.    

6.More importantly, nor did he provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, and in his supporting affirmation he merely repeated his claim that his life would be in danger if refouled to his home country, while at the hearing he claimed that his application was prepared by his friend and that he would just rely on what was being written in those documents. 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