Re Mohammed Neyazuddin

HCAL 336/2019

[2022] HKCFI 3664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 336 OF 2019

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  30 November 2022

Date of Decision:  14 December 2022

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D E C I S I O N

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1.On 8 April 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 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 22 April 2022, and hence he was some 2 ½ 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 2 ½ months must be considered as very substantial and inordinate, for which he explained in his affirmation that he did not receive the decision in the mail until much later in about early July 2022, but by then he was already out of time with his intended appeal.

5.The court record shows that the decision was initially sent on the same day of 8 April 2022 to the applicant’s then reported address but was subsequently returned through undelivered post, and upon ascertaining with the Immigration Department for his latest reported address, the decision was re-sent on 20 June 2022 to the applicant’s updated address provided by the Immigration Department, which is the same as stated in his present application, without being returned through undelivered post, which would then put the deadline for him to file his intended appeal to 4 July 2022, in which case would put the applicant no more than 1 week late with his appeal, which cannot on any view be considered as significant, and for which 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, and that he also failed to attend the hearing of his summons without any explanation. 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 was not represented and did not appear