Shakeel Awais v. Torture Claims Appeal Board

HCAL 2026/2018

[2023] HKCFI 1822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2026 OF 2018

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D E C I S I O N

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1.On 30 December 2021 Deputy High Court Judge P Li 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 13 January 2022, and hence he was more than 1 year and 4 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 1 year and 4 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that he never received the decision in the mail in late December 2021or early January 2022 as he had been serving a prison term in Stanley Prison for some criminal offence from 2020 until August 2022 when he was discharged from prison and was then transferred to the Castle Peak Bay Immigration Centre (“CIC”) and then to his present detention at Tai Tam Gap Correctional Institution when he was able to make his present application.

5.The court record shows that the decision was first sent on the same day of 30 December 2021 to the Applicant’s last reported residential address without being returned through undelivered post, and again on 5 September 2022 to CIC upon ascertaining from the Immigration Department as to his detention, which would still give the Applicant until end of September 2022 to file his intended appeal, but he did not do so until some 9 months later on 8 June 2023, and for which I am unable to see any good or valid reason for such serious delay of the Applicant 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 in his affirmation in which he just repeated the reasons for his delay instead of clearly or properly identifying any error in the Court’s decision, and as such I do not see any prospect of success in his intended appeal either.

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.