Re Miah Sharif

HCAL 1410/2018

[2021] HKCFI 3196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1410 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Decision: 1 November 2021

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D E C I S I O N

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1.On 22 April 2021 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/petition regarding his non-refoulement claim upon finding 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 8 September 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 May 2021, and hence he was some 4 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 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 4 months must be considered as very substantial, for which he explained in his affirmation that he as an unrepresented litigant was not aware of the rule and did not receive any correspondence from the Court regarding the decision, and hence he was out of time with his intended appeal but without providing any further details or documentary evidence in support of his assertions.

5.The court record shows that the decision was sent on the same day to the Applicant’s last reported address, while ignorance of the rules cannot be an excuse for their non-compliance, 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 in his summons, while in his affirmation he merely stated that the Court’s decision has been reached wrongly without allowing him any opportunity to clarify his case and situation in his home country when the fact is that he never requested an oral hearing for his leave application, 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 any event, the Applicant has recently written to inform the Immigration Department of his wish to withdraw his case as he wants to return to his home country as soon as possible.

8.In the premises, as I am for the reasons given of the view that it would have been futile to extend time for what appears to be a hopeless appeal, and in view of the Applicant’s latest expressed intention, I accordingly dismiss his summons.

The Applicant was not represented