Re Shah Mazloom

HCAL 1478/2018 and
HCAL 2733/2019 (Consolidated)

[2022] HKCFI 2732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1478 OF 2018

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2733 OF 2019

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(Consolidated pursuant to the Order of

Deputy High Court Judge Bruno Chan dated 30 December 2021)

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  31 August 2022

Date of Decision:  14 September 2022

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D E C I S I O N

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1.On 30 December 2021 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/petition 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 17 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 13 January 2022, and hence he was 4 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 4 days cannot on any view be regarded as significant, for which he simply explained in his affirmation that he did not receive the decision but without providing any further details or elaboration as to how he found out about the decision which he now seeks to appeal if he had indeed not received it.

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 as he also failed to attend the hearing of his summons so as to provide any further details or evidence to corroborate his bare assertion, I am not satisfied that he has any good or valid reason for his delay, but given its relative insignificance, 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, and as noted 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