Re Khan Aftab

HCAL 2346/2018

[2022] HKCFI 2353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2346 OF 2018

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  27 July 2022

Date of Decision:  10 August 2022

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D E C I S I O N

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1.On 15 December 2021 I refused to extend time to the late application of the Applicant for leave to apply for judicial review of either the decision of the Director of Immigration (“Director”) in rejecting his non-refoulement claim or of the Torture Claims Appeal Board (“Board”) in withdrawing his subsequent appeal/petition against the Director’s decision at his own request after being satisfied that it was validly made, upon finding that there was no good reason for his serious delay, 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 4 January 2022 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 the High Court, Cap 4A ended on 29 December 2021, and hence he was 6 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 6 days may not be considered as substantial or significant, for which he did not provide any explanation in his summons or affirmation, nor did he attend the hearing of his summons without explanation.

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, I am therefore unable to see any good reason for his delay, but given the relatively insignificance thereof, I propose to focus on the prospect of his intended appeal.

6.However, the Applicant has also 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 affirmation in which he just stated that he is not satisfied with the decision but without any further details or particulars or elaborations as to why he is so, and as noted above he also failed to attend the hearing of his summons without explanation. 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 was not represented and did not appear