Hussain Rizwan v. Torture Claims Appeal Board

HCAL 692/2018

[2023] HKCFI 1820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 692 OF 2018

_____________

_____________

________________

D E C I S I O N

________________

1.On 8 April 2021 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 against the decision of the Director of Immigration (“Director”) in refusing to re-open his non-refoulement claim due to his failure to return his completed Non-refoulement Claim Form (“NCF”) within the period required to substantiate his 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 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 6 June 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 22 April 2021, and hence he was more than 2 years 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 2 years must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he started serving a prison term in September or October of 2021 for some criminal offence until November 2022 when he was released from prison and was then transferred to his present detention at Tai Tam Gap Correctional Institution that he was able to make his present application.

5.The court record shows that the decision was sent on the same day of 8 April 2021 to the Applicant’s last reported address without being returned through undelivered post, and that even if he was indeed in prison in September or October 2021, he would still have had some 5 months until then to make his present application but for which he failed to explain why he did not do so, and as such I am not satisfied that the Applicant has provided a good or valid reason for his such 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 repeated his complaints against the decisions of the Director or the Board as before, and in the absence of any error in the Court’s 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.