Re S M Showan

HCAL 980/2017

[2021] HKCFI 376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 980 OF 2017

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 21 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 13 July 2018 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 3 April 2019 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 27 July 2018, and hence he was late by more than 8 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, I should first note that after his summons was issued, somehow it was misplaced by the Registry and no hearing was fixed before the court to deal with it, and it was not until the applicant on 29 September 2020 issued another summons for the same relief when the first summons was located and a hearing was eventually given for the applicant to proceed with his application.

5.Accordingly the applicant’s delay should be treated as one that was up to the time of his first summons on 3 April 2019, which thus gives a delay of more than 8 months but which must still be considered as very substantial and excessive, for which the applicant explained at the hearing of his summons that at the material time he was first in police’s custody and later in detention at the Castle Peak Bay Immigration Centre (“CIC”) until his release on recognizance in October 2020, but he was unable to provide any further details as to the respective periods of his being in police custody or detention at CIC, and while I note that in both of his summonses and supporting affirmations he gave his address at CIC, it also show that he was still able to issue his summons out of CIC or had access to legal assistance to enable him to do so, and while being in detention there would be the inevitable restrictions and delays as to mails and access to such legal assistance, they cannot in my view account for such serious delay on the part of the applicant with his intended appeal.  In the circumstances I am not satisfied that the applicant has shown any good reason for his 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 in his summons, while in his affirmation he simply just stated that the decision was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country but without providing any details or particulars or elaboration as to how it was so, and at the hearing of his summons he merely repeated his claim that his life would still be in danger in his home country.  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 both of his summonses.

The applicant appeared in person