Alam Manzoor v. Torture Claims Appeal Board

HCAL 2010/2019

[2024] HKCFI 1815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2010 OF 2019

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D E C I S I O N

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1.On 30 January 2024, I refused to extend time to the late application of the Applicant for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding there was no good reason for his serious delay of 2 ½ months with his 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 30 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 13 February 2024, and hence he was some 3 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 3 ½ months must be considered as substantial and inordinate, for which he explained at the hearing of his summons that he was then being detained by the Immigration Department, and as he was without legal representation, he did not know how to appeal until later when he managed to get help from some friends, but by then he was already out of time with his intended appeal.

5.The court record shows that the decision was sent on the same day of 30 January 2024 to the Applicant’s then detention at Tai Tam Gap Correctional Institution without being returned through undelivered post, and while it is accepted that the Applicant was unrepresented and would require assistance with his application, given the availability of assistance from welfare officers stationed in his detention, I am not satisfied that the Applicant has any justification 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 in which he just repeated his case as before and referred to various applicable principles for the determination of non-refoulement claims and precedents but without identifying any error in the decision that he might argue as proper ground for his intended appeal, nor was he able to do so at the hearing of his summons. 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 by the Applicant. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

The Applicant appeared in person.