Re Mohammad Balli

HCAL 807/2018

[2021] HKCFI 374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 807 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 12 January 2021

Date of Decision: 4 March 2021

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D E C I S I O N

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1.On 1 September 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 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 28 September 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 expired on 15 September 2020, and hence he was late by 13 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 13 days may not be considered as substantial, for which he explained in his affirmation that he was without legal assistance and was not aware of the 14-day rule for filing of appeal, but at the hearing of his summons he claimed to have never received the decision in the mail and only became aware of it when he later came to the Registry to check on the decision that he was only given a copy but by then he was already out of time.

5.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 given the conflicting evidence of the applicant, I am not satisfied that he has provided a valid or good reason for his delay, but I accept that whatever the reason his delay is not significant, and propose to focus on the merits or prospect of his intended appeal.

6.However, the applicant did not 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 or affirmation other than a vague assertion that it is a “biased and erred judgment” but without providing any relevant or valid details or particulars or elaboration why it is so, and at the hearing of his summons when he was invited to clarify his assertion or whether he has any other ground of appeal, he merely repeated that he cannot go back to his home country as his problem is still there.  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