Mamdouh Rabie Mohamed Saleh v. Torture Claims Appeal Board

HCAL 257/2023

[2023] HKCFI 3231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 257 OF 2023

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BETWEEN

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D E C I S I O N

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1.On 4 August 2023 I refused to extend time to the seriously late application of the Applicant for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in refusing to allow him to file his Notice of Appeal out of time upon finding that there was no good reason for his extremely serious delay of more than 5 years with his intended application, that none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the 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 6 October 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 High Court, Cap. 4A ended on 18 August 2023, and hence he was more than 1 ½ 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 the intended appeal; and (iv) the prejudice to the respondent if 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of more than 1 ½ months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he has all sorts of health issues including depression and inability to focus or concentrate his mind that he simply forgot to file his appeal within the required 14-day period.

5.The court record shows that the decision was sent on the same day of to the Applicant’s last reported address which is the same as stated in his present application and without being returned through undelivered post, and in the absence of any further or relevant details or documentary evidence to corroborate his assertion of health issues which had in fact been similarly raised in his process before the Director and the Board but were never substantiated, 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 in his affirmation, nor was he able to do so at the hearing of his summons when he in fact stated that he is unable to find any error in the decision but just wanted more time to gather his evidence in support of his non-refoulement claim. 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. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

The Applicant appeared in person