Re Mehmood Nasir

HCAL 2195/2018

[2021] HKCFI 2642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2195 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 31 August 2021

Date of Decision: 9 September 2021

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D E C I S I O N

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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 dismissing his appeal/petition regarding his non-refoulement 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 the process before the Director of Immigration (“Director”) 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 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 almost 6 weeks 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 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 The 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 6 weeks must be considered very substantial and excessive, for which he stated in his supporting affirmation as follows:

“I am the Applicant herein. The decision made by the Deputy High Court Judge C P Pang has been reached unfairly without allowing me an opportunity to clarify my case. I was not aware that I can request the oral hearing for my application for leave to apply for Judicial Review. I did not receive the order dated 19^th January 2021 which is why I did not even know that my application for leave to apply for judicial review was refused by DHCJ C P Pang. I went to report at Ma Tau Kok Government Offices on the 12^th March 2021 when the Immigration Officers told me that my application was refused. However, it is not sufficient that I am a litigant in-person, illiterate & unrepresented, thereby making me unaware of the legal procedures and the time limit. So, I humbly request the court to allow my appeal out of time and give me a chance to explain.”

5.At the hearing of his summons the Applicant repeated the same explanation but without providing any further or documentary evidence such as the envelope which contained the decision to show its actual postmark, 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, and in the absence of any further details or documentary evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good reason for his delay.

6.More importantly, the Applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation in which he as noted above complains that he was not given any oral hearing before the Learned Judge because he was not aware that he could do so, but at the hearing of his summons when he was invited to clarify whatever that he had wanted to or to put forth his proposed grounds of appeal, he merely repeated his claim as before that his problem in his home country has not been resolved and that his life would still be in danger if refouled 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, 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