Md Sarwar Alam Parvez v. Torture Claims Appeal Board

HCAL 1585/2019

[2024] HKCFI 1756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1585 OF 2019

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D E C I S I O N

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1.On 2 May 2024 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) 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.

2.The Applicant now by a summons issued on 17 May 2024 seeks extension of time to appeal against that decision, 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 expired on 16 May 2024, and hence he was 1 day 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 1 day cannot on any view be considered as significant, and for which he did not provide any explanation in his summons or supporting affirmation, nor did he attend the hearing of his summons without any explanation.

5.The court record shows that the decision was sent on the same day of 2 May 2024 to the Applicant’s last reported address without being returned through undelivered post, but given the most insignificance of delay of just 1 day, and the fact that the decision might have been delivered to him only on the next day of its postage, I am prepared to exercise my discretion in favour of the Applicant to extend time for the filing his intended appeal.

6.Accordingly, I grant further time to the Applicant to file his Notice of Appeal within 7 days of this decision.

The Applicant was unrepresented and did not appear