Re Molla Masud

HCAL 1412/2018

[2022] HKCFI 289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1412 OF 2018 

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D E C I S I O N

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1.On 8 June 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his appeal regarding 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 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 9 August 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 June 2021, and hence he was almost 7 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 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 7 weeks must be considered as very substantial or inordinate, for which he just stated in his supporting affirmation that he did not receive the decision within reasonable time without providing any further details or documentary evidence such as the envelop which contained the decision to show the actual postmark, and at the hearing of his summons he clarified that he did receive the decision in the mail within time, but as he was unrepresented and had had to seek help to prepare for his appeal when by then he was already out of time.

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 while I accept that an unrepresented litigant like the Applicant may need to seek legal assistance with his litigation, that cannot in my view justify his such serious delay, and as such 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 affirmation, and at the hearing of his summons he could only state that he still has problem in his home country that he wants more time to remain in Hong Kong. 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. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.

The Applicant appeared in person