Re Kamrul Hasan Alias Parves Miah

HCAL 2207/2018

[2022] HKCFI 553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2207 OF 2018

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D E C I S I O N

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1.On 15 January 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision 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 8 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 ended on 29 January 2020, and hence he was more than 1 year 10 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 more than 1 year 10 months must be considered as extremely substantial or inordinate, for which he did not provide any explanation in his summons or supporting affirmation, and as the court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I am unable to find any reason or explanation for his such serious delay.

5.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 supporting affirmation in which he just repeated his claim as before, while his complaint that he was not allowed any opportunity to clarify his case or his situation in his home country but without providing any particulars or elaboration as to how it was so, as the court record shows that he failed to attend the oral hearing scheduled on 25 September 2019 for his leave application without any explanation thereafter for his non-attendance.  As such, and in the absence of any error in the decision being clearly and properly identified by him in his present summons, I do not see any prospect of success in his intended appeal either.

6.Furthermore, shortly after issuing his summons, the Applicant on 7 February 2022 wrote to the Court to request to withdraw his application for leave to appeal as there is no more threats against him in Bangladesh, and hence he now wants to return to his home country.

7.In the premises, and as for the reasons given that it would be futile to extend time for what appears to be a hopeless appeal, I accordingly dismiss his summons.

The Applicant was not represented