Re Badjie Malick

HCAL 1129/2017

[2022] HKCFI 1427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1129 OF 2017

_____________

_____________

Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 12 May 2022

Date of Decision: 25 May 2022

_____________

D E C I S I O N

_____________

1.On 5 March 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 9 September 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 19 March 2021, and hence he was almost 6 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 almost 6 months must be considered as extremely substantial or inordinate, for which he explained at the hearing of his summons that he never received the decision in the mail, and that it was much later when he reported on his recognizance that he was informed of the decision by his immigration officer, but by then he was already way out of time with his intended appeal. He did not provide any further details or documentary evidence in support of his assertions.

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 further evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good reason for his serious delay.

6.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 his affirmation, nor was he able to do so at the hearing other than just repeating his claim of still having problems in his home country unresolved 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