Re Miah Mohammad Faruq

HCAL 2588/2019

[2021] HKCFI 3286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2588 OF 2019

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Decision:  8 November 2021

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D E C I S I O N

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1.On 9 February 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 27 July 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 23 February 2021, and hence he was more than 5 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 more than 5 months must be considered as very substantial, for which he explained in his supporting affirmation that after the decision he initially wanted to return to his home country, but when his family was unable to solve his problem and hence he could still not go home, 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 as a later change of mind about legal proceedings can never be accepted as an excuse not to comply with the rules, 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 merely repeated his claim of fear of harm in his home country as before. 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.Furthermore, before his summons could be dealt with by the Court, the Applicant on 27 October 2021 filed an affirmation requesting to withdraw his application as his “problem solved in Bangladesh”.  

8.In the premises, and as for the reasons given that it would be futile to extend time for what appears to be a hopeless appeal, I accede to the Applicant’s request and accordingly dismiss his summons.  

The Applicant was not represented