Rafaqat Alias Rafaqat Makaram v. Torture Claims Appeal Board

HCAL 2486/2019

[2023] HKCFI 1331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2486 OF 2019

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D E C I S I O N

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1.On 16 September 2022 I refused to extend time to the late application of the Applicant for leave 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 there was no good reason for his serious delay of more than 5 months 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 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 3 January 2023 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 30 September 2022, and hence he was more than 3 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 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 months must be considered as very substantial and inordinate, for which he explained in both his written submissions and at the hearing of his summons that he was then being detained by the Immigration Department at Tai Tam Gap Correctional Institution (“TTGCI”) and with no one to give him any legal assistance until much 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 of 16 September 2022 to the Applicant at TTGCI without being returned through undelivered post, and with the availability of social and legal services within the institution albeit might not otherwise be as readily and expediently available to the Applicant as he had hoped, I am not satisfied that there can be any justification for his such serious delay with his intended appeal.

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/written submissions in which he just repeated his claim as before and with some vague and bare assertions but without any necessary or relevant details or particulars or elaboration as to what or how the Court may have erred in the decision, 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.