Re Mehmood Faisal

HCAL 2305/2018

[2021] HKCFI 2384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2305 OF 2018

____________________

____________________

Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  10 August 2021

Date of Decision:  24 August 2021

____________________

D E C I S I O N

____________________

1.On 19 January 2021 Deputy High Court Judge C P Pang refused to extend time to the late application of the applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in refusing to allow the late filing of his appeal against the Further Decision of the Director in rejecting his BOR 2 Claim upon finding that there was no good reason for his serious delay, 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 his process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.The applicant now by a summons issued on 2 March 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 2 February 2021, and hence he was one month 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 one month must be considered as substantial, for which he explained at the hearing of his summons that he was unaware of the law and needed to find someone to help him with his intended appeal, but by then he was already out of time.

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 while I accept that the applicant is unrepresented and may well require legal assistance for his intended appeal, ignorance of the rules can never be accepted as a valid reason for their non-compliances, and as such I am not satisfied that the applicant 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 arguable that the decision was unfair or unreasonable either in his summons or his affirmation, and at the hearing he merely stated that the Board did not consider his claim properly but without providing any details or particulars or elaboration as to how it did so, 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 either.

7.In the premises, and for the reasons given, 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