Re Yasir Muhammad

HCAL 2322/2018

[2022] HKCFI 1282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2322 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 12 November 2021 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing 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 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 1 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 26 November 2021, and hence he was 5 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 5 days may not be regarded as substantial or inordinate, for which he first stated in his supporting affirmation that he received the decision late as the postman might have put his letter in the wrong mail box in the building where he resides, but at the hearing of his summons he changed his explanation in that he was then sick with a fever and was resting at home, and later when he was feeling better and was able to come to court to file his appeal, he was told 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, and in the absence of any evidence to corroborate either of his bare assertions, I am not convinced that he has provided any good reason for his delay, but given the relatively insignificant delay, I propose to focus on the prospect of his intended appeal.

6.However, 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 his affirmation, and at the hearing he could only repeat his claim as before that he still has problem in his home country 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