Case Document

100%Judiciary

HCAL 1497/2018

[2020] HKCFI 2851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1497 OF 2018

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RE:

RHAMAN ATIKUR

Applicant

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 7 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 8 June 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 17 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 June 2020, and hence he was late by 25 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 25 days cannot be said to be insignificant, for which he explained in his supporting affirmation and at the hearing of his summons that he received the court’s decision late from his landlord, and that he had to find someone to help him with his application to appeal that by the time he had the papers ready when he was already out of time.

5.The court record shows that the decision was sent to the Applicant on the same day of 8 June 2020, and even accepting some delay with the general postal service during the current Covid-19 pandemic as inevitable, that cannot satisfactorily explain why it had taken him in addition of more than 3 weeks to make his appeal, and in the absence of any further or documentary evidence in support of the Applicant’s claim, I am not satisfied that the Applicant’s explanation could account for his such 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, other than a regurgitation of his alleged serious problems in his home country and of his complaints against the Director and the Board for wrongly rejecting his claim. 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.