Re Md Abu Hena

HCAL 598/2018

[2021] HKCFI 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 598 OF 2018 

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D E C I S I O N

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1.On 11 August 2020 I refused to extend time to the applicant’s late application for leave 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 there was no good reason for his serious delay of more than one year with his application, that 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 19 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 25 August 2020, and hence he was late by almost 2 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 almost 2 months must be considered as substantial, for which he explained in his affirmation that he “did not receive the decision timely” without providing any further details or particulars as to how it was so, but at the hearing of his summons he claimed of being afraid to leave his home to file his appeal due to the Covid-19 pandemic until the situation had improved but by then he was out of time with his intended appeal, although he did admit of having made his regular reports on his recognizance to the Immigration Department.

5.The court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and given that there was no lock down of the courts or registries as a result of the pandemic at that time, and that he did continue to make his regular reports to the Immigration Department, I do not accept the applicant’s explanation for not coming to the court to file his intended appeal within time, nor am I satisfied that he has any good reason for his significant 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 affirmation, and at the hearing of his summons he merely repeated his claim that he still has problem in his home country that he cannot go back. 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