Case Document

100%Judiciary

HCAL 1948/2020

[2022] HKCFI 479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1948 OF 2020

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RE:

DITTA ALLAH

Applicant

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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 5 July 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 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.On 15 July 2021 the Court received a summons and an affirmation of the Applicant sent by post from Tai Tam Gap Correctional Institution (where he was then being detained by the Immigration Department) containing the following identical statement in both documents:

“I would like to apply judicial review summons because I don’t agree with the decision of Torture Claim Appeal Board, H.K. Immigration Department and Judicial Review Form 86. I can’t go back to my home country Pakistan because my life is still in danger over there.”

3.As it is plain from the above that the Applicant’s leave application for judicial review of the Board’s decision by way of his Form 86 filed on 28 September 2020 had already been disposed of by my decision of 5 July 2021, I therefore dealt with the summons on papers and directed on 5 October 2021 that it be struck out and dismissed, and with a sealed copy thereof served on the Applicant at both Tai Tam Gap Correctional Institution and Stanley Prison.

4.Three months later on 20 January 2022 the Applicant issued another summons from Tai Tam Gap Correctional Institution which is now before me essentially for leave to appeal against my decision of 5 July 2021 refusing leave to him to apply for judicial review of the Board’s decision, as the 14-day period for him to do so required under Order 53 rule 3(4) of the Rules of High Court, Cap. 4A already expired on 19 July 2021, and hence he was some 6 months late with his intended appeal.

5.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.

6.In the Applicant’s case, a delay of 6 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that after receiving the decision sometimes in July 2021 in Tai Tam Gap Correctional Institution where he had been detained since June 2021, he had had to seek legal assistance through the social welfare service, and that by the time he was able to find a lawyer to help him to prepare his appeal papers, he was already out of time to file the notice of appeal.

7.While I accept that the Applicant being an unrepresented litigant in detention would certainly experience more restrictions and inconveniences with his legal process, but I just do not see any justification for a delay as much as 6 months notwithstanding his circumstances, and I am not satisfied that the Applicant has provided any good reason for his such serious delay.

8.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 affirmation, and at the hearing of his summons he just pleaded to be released from custody so that he could find further documentary 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.

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