Re Khan Wajid

HCAL 253/2018

[2020] HKCFI 2853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 253 OF 2018  

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 14 October 2020

Date of Decision: 19 November 2020

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D E C I S I O N

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1.On 6 July 2020 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 4 August 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 20 July 2020, and hence he was late by 15 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 15 days cannot be said to be insignificant, for which he explained in both his affirmation and at the hearing of his summons that he was at the material time having a fever for about 5 days, and afterwards as he was concerned about the Covid-19 pandemic, he was afraid to leave his home until early August 2020 when by then he was already out of time with his intended appeal.

5.The Applicant however did not produce any medical report or documentary evidence in support of his alleged fever as he claimed to have not consulted any doctor for medical treatment and that he only took his own medication, and being a healthy young man at the age of 26 with no known medical condition, he certainly did not appear to me as someone who could be prevented by a short period of fever from lodging something as important to him as his notice of appeal within the stipulated 14-day period. As such I am not convinced that he has provided any good or valid reason for his delay.    

6.More importantly, nor did he in his summons or supporting affirmation 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 at the hearing of his summons he admitted of not having any proper grounds other than a request that his claim should be reviewed again by the court. 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