Re Muhammad Ishtiaq

HCAL 1131/2017

[2021] HKCFI 43

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1131 OF 2017  

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 4 November 2020

Date of Decision: 21 January 2021

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D E C I S I O N

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1.On 28 June 2018 Deputy High Court Judge Josiah Lam refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of 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 26 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 12 July 2018, and hence he was late by more than 2 years 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 2 years must be considered as extremely substantial and excessive, for which he explained at the hearing of his summons that he never received the decision in the mail as he did not have any regular residential address, and that it was only in August 2020 during one of his regular reports on his recognizance to the Immigration Department that he was informed of the decision, but by then he was seriously out of time with his intended appeal.

5.The Applicant however was unable to provide any further or documentary evidence in support of his assertion, and as the court record shows that the decision was sent on the same day to his last reported address and has never been returned through undelivered post, and as it was his duty to provide to the authorities his latest residential or correspondence address, I am not satisfied that he has provided any good reason for his such serious delay.       

6.More importantly, nor did he put forward any proper or valid 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 either in his summons or affirmation, and at the hearing of his summons he merely repeated his claim that his problem in his home country has not been solved and hence he cannot go home. 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