Re Waseem Sohail

HCAL 1023/2018

[2022] HKCFI 117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1023 OF 2018

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D E C I S I O N

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1.On 23 December 2020 I refused to extend time to the Applicant’s seriously late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding that there was no good reason for his almost 7 months 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 (“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 2 December 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 expired on 6 January 2021, and hence he was almost 11 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 almost 11 months must be considered as extremely inordinate, for which he explained in a letter attached to his supporting affirmation and marked as exhibit “A” that he never received the decision sent on 23 December 2020 to his last reported residential address at Room 1, 11/F, 607 Nathan Road, Kowloon because he was then being detained at the Lai Chi Kok Remand Centre, and that earlier in July 2020 he already could not afford to rent that place and was therefore rendered homeless until February 2021 when he was able to rent another place at Room B, 5/F, 10 Lun Cheung Street, Kowloon.

5.The court record shows that the decision sent on 23 December 2020 to the Applicant’s said last reported address had indeed been returned through undelivered post, but the decision was also sent on the same day to Castle Peak Bay Immigration Centre (“CIC”) where he was then known to be detained and would have been received by him at CIC at that time.

6.Whilst it is also true that later in July 2021, the Applicant had written from Lai Chi Kok Reception Centre (“LCKRC”) and also in August 2021 from Tai Lam Correctional Institution (“TLCI”) indicating his intention to appeal against the decision, and hence he might indeed have been transferred out of CIC at some time to either LCKRC or TLCI as alleged, but he did not explain when he was so transferred, or how or when he later came to learn about the decision which he now seeks to appeal, as he also failed to attend the hearing of his summons without explanation. As such, and in the absence of any further details or documentary evidence to corroborate his assertions, I am not satisfied that the Applicant has provided a good reason for his such serious delay.

7.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 just stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, and as noted above he also failed to attend the hearing of his summons without explanation. 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.

8.In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.

The Applicant was not represented and did not appear