Re Waheed Muhammad

HCAL 286/2018

[2021] HKCFI 817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 286 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 23 March 2021

Date of Decision: 1 April 2021

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D E C I S I O N

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1.On 1 June 2020 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“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 October 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 15 June 2020, and hence he was late by 4 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 4 months must be considered as very substantial or excessive, for which he explained at the hearing of his summons that he was not aware of the law, and that he did not know how to appeal until he was able to find a friend to help him but by then he was already out of time with his intended appeal.

5.Ignorance of the law of course cannot be accepted as a valid reason for its non-compliance, and while I accept that the applicant as an unrepresented litigant in person would need assistance with his intended appeal, still it cannot explain away such a serious delay, as the court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am not satisfied that there is any good reason for such a delay of 4 months.

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 just stated that he does not want to go back to 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 his summons.

The applicant appeared in person