Re Ben Salem Hassen

HCAL 1140/2018

[2021] HKCFI 189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1140 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 21 October 2020

Date of Decision: 5 February 2021

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D E C I S I O N

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1.On 22 November 2019 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 15 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 6 December 2019, and hence he was late by more than 7 months 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 months must be considered as very substantial and excessive, for which he stated in his supporting affirmation of the same date as follows:

“I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the High Court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. The decision has heavily relied on the Country of Origin provided by the ImmD. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be dismissed and was never served with Notice of Appeal of hearing as I was in custody of Correctional Services Department. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

5.The applicant however did not appear at the scheduled hearing of his summons, nor did he thereafter respond to the court’s request for his explanation as to his non-attendance.

6.It seems therefore according to his affirmation that the explanation for the delay of his intended appeal is due to the applicant being detained at the Castle Peak Bay Immigration Centre (“CIC”), but there is no information as to exactly when he became so detained, and that while it is inevitable that there would be some restrictions and inconvenience as to incoming and outgoing mails as well as accessing legal assistance inside CIC, I am not satisfied that they can be accepted as good or valid reasons for such a serious delay with his intended appeal.

7.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 in his summons, while in his affirmation as noted above that his complaint of not being allowed the opportunity to clarify his case is clearly factually incorrect when he failed to attend the scheduled hearing for his leave application and subsequently also failed to respond to the request for an explanation for his absence, while his other complaint over the reliance of Country of Origin Information (“COI”) is without any details or particulars or proper elaboration as to how it was so, and that in any event it is again factually incorrect, irrelevant and not reasonably arguable for his intended appeal.  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.

8.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 was not represented and did not appear