Re Rafzaal Ahmed

HCAL 2364/2018

[2021] HKCFI 1851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2364 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 22 June 2021

Date of Decision: 6 July 2021

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D E C I S I O N

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1.On 22 June 2020 I dismissed the applicant’s 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 his written request to withdraw his application for his stated reasons that his issue in his home country had been resolved and that it would be safe for him to return to Pakistan.

2.The applicant now by a summons issued on 13 April 2021 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 6 July 2020, and hence he was more than 9 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 9 months must be considered as very substantial, for which he explained at the hearing of his summons that he had been admitted into a hospital in 2019 due to mental problem and was not discharged until sometime in 2020, and hence he never received the decision in the mail or was aware of it until later when he reported on his recognizance that he was informed by his immigration officer, but by then he was already out of time with his intended appeal.

5.In support of his assertions the applicant at the hearing produced a copy of his medical appointment issued by the West Kowloon Psychiatric Clinic at Princess Margaret Hospital showing his next appointment to be in August 2021 which however does not disclose anything else regarding the applicant’s mental or medical condition, while he was able to understand my questions well in court and gave his answers and made his representation clearly and without difficulties.

6.The court record shows that when the applicant made his earlier written request dated 30 January 2020 to withdraw his application but which he only sent to the court on 9 June 2020 and was received by the High Court Registry on 10 June 2020, probably due to the fact that there was earlier the GAP caused by the Covid-19 pandemic when courts and registries were generally closed until end of May 2020, but he did also produce a copy medical report issued by Kwai Chung Hospital dated 3 October 2019 which stated as follows:

“This Pakistani Recognanzance holder has been admitted to this hospital for Methamphetamine abuse and intoxication. He is now mentally settled and is free from any effect of substances.

He is recommended to go back to Pakistan as soon as possible so as to be supervised and supported by his family. He is willing to so.

He is now ready for discharge and is fit for flight.”

7.This shows that while the applicant had indeed been admitted to hospital in 2019 due to drug abuse and intoxication rather than mental problem as alleged, he was ready to be discharged by October 2019 according to this medical certificate. He might of course not have been discharged after all, or might subsequently have been re-admitted to hospital due to some other medical reasons, but there is no such evidence before the court, and that the onus is for him to satisfy the court that he had indeed never received the decision which was sent on the same day of 22 June 2020 to his last reported address provided by the Immigration Department and which has never been returned through undelivered post. As such I am not satisfied that the applicant has provide a good reason for his serious delay.

8.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 still have problem in his home country where his life would still be in danger. 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.

9.In fact, as noted above, the decision to dismiss the applicant’s claim was made at his request and upon his own evidence that his alleged problem in his home country which formed the basis of his non-refoulement claim had been resolved, which was also supported by another document produced by the applicant at the time of his request, namely an affidavit made by a brother of his which supported his proposal to return to his family in Pakistan. If indeed his alleged problem in his home country has recurred or has not been resolved after all, he may have other reliefs to resort to within the provisions of the Immigration Ordinance, but certainly not by way of appeal against that decision.

10.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