Re Sheikh Tajuddin

HCAL 2254/2020

[2022] HKCFI 291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2254 OF 2020 

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D E C I S I O N

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1.On 4 May 2021 I refused to extend time for the seriously late application of the Applicant for leave 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 that there was no good reason for his serious delay of more than 13 months, 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 (“the Director of Immigration”) or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application, having also taken into account his subsequent request to withdraw his application as he wanted to return to his home country.

2.The Applicant now by a summons issued on 2 September 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 18 May 2021, and hence he was some 3 ½ 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 3 ½ months must be considered as very substantial or inordinate, for which he explained in his affirmation that as he was unrepresented and was not familiar with the procedural rules, and as he needed to seek help from others to prepare for his application, but by then 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 ignorance of the rules can never be accepted as a valid excuse for their non-compliance, and while I agree that the Applicant as an unrepresented litigant would need help with his application, that still cannot in my judgment justify such an inordinate delay. In the circumstances 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 in his affirmation in which he referred to his earlier request to withdraw his leave application so that he could return to India as noted above, but now that he finds the Covid-19 pandemic situation in his home country “very bad” that he has a change of mind about withdrawing his application for judicial review, and hence he wants to appeal against the withdrawal and dismissal of his application, but which I do not find as a valid ground of appeal against the decision, while he also failed to attend the hearing of his summons without any 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.   

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 was not represented and did not appear