Re Mazumder Arifur Rahman

HCAL 23/2022

[2023] HKCFI 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 23 OF 2022

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  21 December 2022

Date of Decision:  4 January 2023

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D E C I S I O N

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1.On 1 June 2022 I refused to extend time to the late application of 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 regarding his non-refoulement claim upon finding that there was no good reason for his serious delay of more than 4 weeks with his application, 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 decisions, and that there was no reasonable prospect of success in his intended application given the factual basis of his own case as a private family dispute that any risk arising therefrom was correctly found by the Director in both his previous claim and his proposed subsequent claim to be wholly negated by state/police protection and internal relocation available to the applicant upon his return to his home country.

2.The applicant now by a summons issued on 29 September 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 expired on 15 June 2022, and hence he was some 3 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 3 ½ months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he had been detained at Tung Tau Correctional Institution since late 2021 during which he was unable to obtain legal assistance for his application, and it was only in September 2022 when he was transferred to the Castle Peak Bay Immigration Centre (“CIC”) that he was eventually able to proceed with his intended appeal, but by then he was already out of time.

5.The court record shows that the decision was sent on the same day of 1 June 2022 to the applicant’s then reported address at Tung Tau Correctional Institution without being returned through undelivered post, and while it is accepted that during detention there would be the inevitable delays in receiving mails and accessing legal assistance, I am not satisfied in the circumstances of the applicant’s case that they could be accepted as good or valid reasons for his serious delay.

6.More importantly, the applicant also 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 at the hearing of his summons he just repeated his complaint as before that the Director failed to give him sufficient time to provide information in support of his request to make a subsequent claim but which up to now he still fails to explain what they are that would go to support his subsequent claim. 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