Re Zaman Adil

HCAL 857/2018

[2022] HKCFI 1283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 857 OF 2018

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  27 April 2022

Date of Decision:  12 May 2022

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D E C I S I O N

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1.On 9 September 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal regarding his non-refoulement claim upon finding that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 4 November 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 23 September 2020, and hence he was more than 13 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 13 months must be considered as extremely substantial and inordinate, for which he explained in his supporting affirmation that he was not aware of the 14-day time limit to file his Notice of Appeal, and at the hearing of his summons he added that he was in prison in July or August 2021 for 7 months, while earlier he might have changed his address but without informing the Court of his new address. He did not provide any further details or evidence in support of any of his assertions.

5.The court record shows that the decision was sent on the same day to the Applicant’s last reported address provided to the Immigration Department without being returned through undelivered post, and if he did change his address at the material time without informing the authorities which was his duty to do so, he had only himself to blame if he indeed did not receive the decision in the mail, while his claim of being in prison for 7 months in the latter half of 2021 is irrelevant as the decision was sent to him in the previous year on 9 September 2020. In the circumstances and in the absence of any reliable evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided any good reason for his such serious delay.

6.More importantly, nor has he 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 just stated that the decision was unfair for not allowing him an opportunity to clarify his case and situation in his country which is in my view without any basis or merits as he never requested for any oral hearing for his application in the first place, while at the hearing of his summons when he was invited to do so, he could only repeat his claim as before that his problem in his home country in Pakistan has not yet resolved that he cannot yet return. 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