Khan Muhammad Naeem v. Torture Claims Appeal Board

HCAL 799/2021

[2023] HKCFI 1821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 799 OF 2021

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D E C I S I O N

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1.On 3 September 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 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 8 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 17 September 2021, and hence he was more than 20 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 20 months must be considered as extremely substantial and inordinate, for which he only stated in his affirmation that he received the decision late in the mail but without any further details or evidence, nor did he subsequently attend the scheduled hearing of his summons without any explanation.

5.The court record shows that the decision was first sent on the same day of 3 September 2021 to the Applicant’s then reported detention at Castle Peak Bay Immigration Centre (“CIC”) but was returned undelivered as he was by then already released from his detention, and on 13 September 2021 the decision was re-sent to the Applicant at his then reported address provided by the Immigration Department which is the same as stated in his present application without being returned through undelivered post, and hence he would still be seriously late by some 20 months, and in the absence of any evidence such as the envelope which contained the decision to show the actual postmark to corroborate his bare assertion of receiving the decision late, I am not satisfied that the Applicant has provided any 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, and as noted above that he also failed to attend the hearing of his summons without 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 is unrepresented and did not appear.