Re Khan Abid

HCAL 779/2018

[2021] HKCFI 3247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 779 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 27 October 2021

Date of Decision: 10 November 2021

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D E C I S I O N

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1.On 8 April 2021 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 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 18 June 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 22 April 2021, and hence he was 8 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 8 weeks must be considered as very substantial, for which he explained in his supporting affidavit that he never received the decision in the mail because he had changed his residential address without any further details or particulars 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 which is the same as stated in his present application without being returned through undelivered post, and if the applicant had indeed at the relevant time changed his address, it would have been his duty to inform the relevant authorities of such change as soon as possible, and in the absence of any further details or documentary evidence to corroborate his bare assertions, for which he also failed to attend the hearing of his summons without any explanation, 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 his affidavit, and as noted above that he also failed to attend the hearing of his summons.  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 was not represented and did not appear