Re Golam Irfan

HCAL 1536/2018

[2021] HKCFI 3485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1536 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Decision: 26 November 2021

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D E C I S I O N

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1.On 13 May 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 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 then by a summons issued on 27 July 2021 sought 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 27 May 2021, and hence he was 2 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 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 2 months must be considered as substantial or inordinate, for which he explained in his supporting affirmation that he did not receive the decision within time but without any further details or documentary evidence.

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 in the absence of any details or documentary evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided any 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 affirmation. 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 either.

7.On 15 November 2021 and before his summons was heard, the Applicant wrote to the Court stating that he wants to “cancel” his case because he has decided to go back to his home country. In the premises, and as for the reasons given it would in any event be futile to extend time for what appears to be a hopeless appeal, I accede to his request and according dismiss his summons.

The Applicant was not represented