Re Md Zakir

HCAL 1870/2018

[2022] HKCFI 2886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1870 OF 2018

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  14 September 2022

Date of Decision:  28 September 2022

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D E C I S I O N

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1.On 31 March 2022 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 24 May 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 14 April 2022, and hence he was more than 5 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 more than 5 weeks must be considered as substantial and inordinate, for which he explained at the hearing of his summons that he did not have money to pay for the filing fees for his appeal, and that buy the time he was able to do so he was already out of time with his intended appeal.

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, while the lack of financial means can never be accepted as an excuse for the non-compliance of procedural rules. In the circumstances I am not satisfied that the applicant has provided any good or valid reason for his such serious delay.

6.More significantly, 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 his problem has remained unresolved that he cannot return to 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