Khan Muhammad Alam Zaib v. Torture Claims Appeal Board

HCAL 342/2019

[2024] HKCFI 1364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 342 OF 2019

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Reasons for Decision

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1.Upon hearing the Applicant on 16 May 2024 in his application for extension of time to appeal against my decision made on 5 January 2024 refusing leave for him to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) regarding his non-refoulement claim, I extended time for him to do so within 14 days. I now give the reasons for my decision.

2.On 5 January 2024 I refused to grant leave to the Applicant to apply for judicial review of the Board’s decision in rejecting/dismissing his non-refoulement claim upon finding 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.

3.The Applicant by a summons issued on 24 April 2024 sought leave to appeal against that decision out of time, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A had expired on 19 January 2024, and hence he was some 3 months late with his intended appeal.

4.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.

5.In the Applicant’s case, a delay of 3 months was considered as substantial and inordinate, for which he explained at the hearing of his summons on 16 May 2024 that he never received the decision in the mail, and that it was only much later during one of his periodical reports on his recognizance recently in late April 2024 that he was informed by his immigration officer of the Court’s decision, and that it was only after he managed to get a friend to help him to download a copy of the Court’s decision from the judiciary website that he learnt of the Court’s refusal of his leave application, but when he tried to file his notice of appeal, he was told by the Registry that he was already out of time with his intended appeal against the Court’s decision.

6.The court record shows that the decision was sent on the same day of 5 January 2024 to the Applicant’s last reported address which is the same as stated in his present application, but the decision was somehow returned by the Post Office marked “Incorrect Address”, and upon confirming with the Applicant at the hearing and upon inspecting the address typed on the envelope which contained the decision, I was satisfied that it was through no fault of the Applicant that the decision failed to be delivered to him at his correct address by the Post Office, and therefore granted him a further 14 days to appeal against the Court’s decision.

The Applicant appeared in person