Re Zubair Muhammad

HCAL 63/2022

[2022] HKCFI 2813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 63 OF 2022

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  7 September 2022

Date of Decision:  20 September 2022

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D E C I S I O N

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1.On 25 March 2022 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“Director”) or 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 21 April 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 8 April 2022, and hence he was almost 2 weeks 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 2 weeks may be considered as significant or substantial, for which he explained at the hearing of his summons that the court was at that time closed due to the latest outbreak of Covid-19 cases, and that by the time it was re-opened he was already out of time with the filing of his intended appeal.

5.The court record shows that the decision was sent on the same day of 25 March 2022 to the applicant’s last reported address without being returned through undelivered post, and while it is true that there was another surge of Covid-19 cases earlier this year that caused the Registries to be closed down, but the GAP on this occasion was from 7 March 2022 to 11 April 2022, and hence the deadline for the applicant to file his Notice of Appeal after GAP would be 12 April 2022, in which case he was still some 9 days late with his intended appeal, but given his relatively insubstantial 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 in his affirmation, and that at the hearing of his summons he could only repeat his claim as before and that he still has life threats in his home country. 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