Re Khan Imran

HCAL 1526/2018

[2021] HKCFI 44

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1526 OF 2018

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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 8 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 24 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 22 July 2020, and hence he was late by more than 1 month 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 1 month must be considered as significant, for which he explained in his supporting affirmation that as he did not know how to appeal and had had to seek advice from his friends which accounted for his delay, but at the hearing of his summons he gave a different explanation in that he could not find the decision in his mail box, and only discovered it later on the floor of the building where he lives, but by then he was already out of time with his intended appeal.

5.Given the conflicting evidence in his explanation, and that in any event neither one could be accepted as proper or valid justification for his significant procedural breach, I am not satisfied that the Applicant has provided any good reason for his 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 at the hearing, and in his supporting affirmation he merely repeated his claim that his problem still exists in his home country that he cannot yet 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