Re Ali Saif

HCAL 655/2021

[2022] HKCFI 477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 655 OF 2021

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 9 February 2022

Date of Decision: 23 February 2022

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D E C I S I O N

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1.On 30 July 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 now by a summons issued on 19 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 13 August 2021, and hence he was 6 days 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 6 days may not be regarded as significant, for which he explained in both his supporting affirmation and at the hearing of his summons that as an unrepresented and uneducated litigant, he had to look for help with his appeal process, but by the time he was able to find someone to help him to do so, 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, but given the relatively insignificance of his delay, I propose to focus on the prospect of his intended appeal.

6.However, the Applicant did not 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, nor was he able to do so at the hearing of his summons other than that he needed more time to obtain further evidence in support of his non-refoulement claim. 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 the Applicant’s application for extension of time to appeal, and dismiss his summons.

The Applicant appeared in person