Re Islam Zohurul

HCAL 2173/2018

[2021] HKCFI 1140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2173 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 20 April 2021

Date of Decision: 6 May 2021

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D E C I S I O N

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1.On 15 September 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 1 December 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 29 September 2020, and hence he was more than 2 months late 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 2 months must be considered as substantial and excessive, for which he explained at the hearing of his summons that he changed his residential address at that time without informing the court, and that his former tenant only handed him the decision sent to his former address about one month later when by then he was already out of time with his intended appeal.

5.The court record shows that the decision was sent on the same day to the applicant’s last reported address without being returned through undelivered post, and the fact that the applicant in his affirmation in support of his present application reveals the same address as the one to which the decision was sent has casted doubt on his claim to have changed his address at that time or at all. In any event, even if he did change his address at that time, it was his duty to inform the authorities of the change as soon as practicable but which he readily conceded that he had failed to do so, and for which he has only himself to blame for not receiving the decision on time. In the circumstances I am not satisfied that he has provided any good reason for his 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 his problem in his home country still exists and that he would like to remain in Hong Kong. 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