Re Ali Rafaqat

HCAL 1419/2018

[2020] HKCFI 2849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1419 OF 2018 

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 15 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 2 June 2020 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 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 6 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 16 June 2020, and hence he was late by more than 7 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 more than 7 weeks must be considered as significant, for which he claimed in his supporting affirmation that he never received the decision in the mail and was only told of it by his immigration during one of his regular reports on his recognizance to the Immigration Department, but at the hearing of his summons he changed his evidence by claiming that he only received the decision in the mail late sometime in early August 2020 when by then he was already out of time with his appeal.

5.The court record however shows that the decision was sent on the same day of 2 June 2020 to his last reported address which has never been returned through undelivered post, and in the absence of any documentary evidence such as the envelop showing the postmark and given the conflicting evidence given by the Applicant, 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 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 merely repeated his claim that his life would be in danger if refouled to his home country, and hence his case should be reviewed by the court. 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