Re Mohammed Abdul Jalil

HCAL 2411/2019

[2022] HKCFI 3188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2411 OF 2019

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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 extend time to the late application of the Applicant 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 there was no good reason for his very serious delay of more than 2 years, 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 23 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 7 April 2022, and hence he was more than 6 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 6 weeks must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he has been detained at the Castle Peak Bay Immigration Centre (“CIC”) since December 2020 and hence did not have the financial means to get legal assistance until later but by then 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 at CIC without being returned through undelivered post, and while I accept that he would require legal assistance from outside with his intended appeal, I am not persuaded that it can justify such serious delay on his part.

6.More significantly, the applicant failed to put forth any proper or valid draft or proposed grounds of appeal in his summons, while his complaint in his affirmation of not being given an opportunity to clarify his case or the situation in his home country is wholly without merits when he never requested any oral hearing for his leave application, and that at the hearing of his summons when he was invited to do so, he merely stated that he just wants to stay in Hong Kong. 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