Re Makhtoom Waseem

HCAL 75/2022

[2022] HKCFI 3507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 75 OF 2022

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D E C I S I O N

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1.On 23 June 2022 I refused to grant leave to the applicant to apply for judicial review of the decision of the Director of Immigration (“Director”) in refusing to allow him to make a subsequent claim after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds 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 in the decision in correctly finding that the basis for the applicant’s subsequent claim was essentially the same as that of his previous claim and that he failed to satisfy the requirements under Section 37ZO of the Immigration Ordinance for making a subsequent claim, and that there was no reasonable prospect of success in his intended application.

2.The applicant now by a summons issued on 11 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 July 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 may not be considered as significant, for which he explained at the hearing of his summons that he being unrepresented had had to find money to pay for legal assistance with his intended appeal which accounted for the slight delay.

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, but given the fact that the applicant was unrepresented and the relatively insignificance of his delay, I propose to focus on the prospect of his intended appeal.

6.However, the applicant 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 in which he just stated that he has married a Hong Kong resident and wants to remain here to be with his wife, and at the hearing of his summons he also just repeated the same reason for his intended appeal. 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