Mazhar Iqbal v. Torture Claims Appeal Board

HCAL 152/2019

[2023] HKCFI 763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 152 OF 2019

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D E C I S I O N

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1.On 28 October 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 his 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 5 December 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 11 November 2022, and hence he was more than 3 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the applicant’s case, a delay of more than 3 weeks must be considered as substantial and inordinate, for which he just stated in his affirmation that he never received the decision from the court without any further details, but at the hearing of his summons he changed his explanation in that he did receive the decision in the mail and that he was then prepared to return to his home country, but later when he was informed by his family that the situation at home was still too risky and dangerous for him to return, he therefore changed his mind and decided to proceed to appeal, but by then he was already out of time to do so.

5.The court record shows that the decision was sent on the same day to the applicant’s last reported address which is the same as stated in his present application without being returned through undelivered post, while a subsequent change of mind about one’s legal process can never be accepted as any valid reason for the procedural delay so caused. In the circumstances I am not satisfied that the applicant has provided any good or valid reason 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 his affirmation in which he just stated that he does not agree with the decision but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his summons. 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