Case Document

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HCAL 1701/2019

[2022] HKCFI 3192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1701 OF 2019

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RE:

ISLAM RAFIQUL

Applicant

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 12 October 2022

Date of Decision: 26 October 2022

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D E C I S I O N

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1.On 24 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 12 July 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 7 April 2022, and hence he was more than 3 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 more than 3 months must be considered as very substantial and inordinate, for which he stated in his affirmation as follows:

“I am the Applicant herein. The decision made by the High Court judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be refused. I humbly request the Court to allow my appeal out of time and give a chance to explain.”

5.The Applicant however did not provide any further details or evidence in support of his assertions, nor did he attend the subsequent hearing of his summons without any explanation.

6.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 clarification or evidence to corroborate his bare assertions such as how he eventually came to find out that his application had been refused if he indeed did not receive the decision from the Court as he so claimed. In the circumstances I am not satisfied that he has provided a good or valid reason for his serious delay.

7.More significantly, nor did the Applicant put forth any proper or valid draft or proposed grounds of appeal in his summons, and while it is true that his leave application was dealt with by the Court on paper without any oral hearing, it is because he never requested for one, and as noted above he also failed to attend the hearing of his summons without any explanation, his complaint of not being allowed an opportunity to clarify his case or the situation in his home country is in the circumstances wholly without merits. 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.

8.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.