Ghafoor Zohaib v. Director of Immigration Department

HCAL 1409/2024

[2024] HKCFI 3296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1409 OF 2024

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BETWEEN

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D E C I S I O N

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A. Introduction

1.The Applicant commenced these proceedings by Form 86 on 23 August 2024.  The intended challenge was as regards the Director of Immigration’s Refusal Decision dated 22 May 2023 and/or his Reconsideration Decision dated 28 May 2024, relating to the refusal to grant the Applicant a dependant visa.

2.The application was made, as usual, ex parte.  I dealt with the application on the papers.

3.By my Decision and Order dated 10 September 2024 [2024] HKCFI 2265, I dismissed the Applicant’s application for leave to apply for judicial review.  I did so on the following individual and cumulative bases (in summary):

(1)  The real intended challenge in the application dated 23 August 2024 was to the Refusal Decision, which was made on 22 May 2023, 15 months earlier.

(2)  The application was significantly out of time, and no explanation was offered to explain the delay or information provided as would justify the grant of an extension of time.

(3)  Even the request for reconsideration was made only approximately 10 months after the Refusal Decision.

(4)  It is trite that the period within which to bring an intended judicial review challenge cannot be renewed or extended simply by requesting a reconsideration of the original decision.

(5)  No public law grounds of review capable of being sustained on the application were identified, and merely suggesting the impugned decision was “not fair” does not satisfy the mandatory requirement to identify such grounds.

(6)  There was in any event no proper basis for the criticism directed at the Director.

(7)  Further, the Applicant was really only referring to compassionate or humanitarian factors, the taking into account and weighing of which was a matter for the Director.

(8)  There was no reasonably arguable public law failure identified as regards the Director’s approach.

4.Now, by summons dated 23 October 2024, together with an affirmation of the same date, the Applicant has applied for an extension of time within which to appeal from my Decision.

5.I heard that summons on 14 November 2024, when the Applicant appeared in person with the benefit of an English/Urdu interpreter.  At the end of the hearing, and for the sake of convenience and the Applicant’s understanding, I reserved my decision to be handed down on 18 November 2024.

B.  The Extension Application

6.In his affirmation, the Applicant explains that he lodged an appeal with the Court of Appeal on 7 October 2024, mainly 26 days after my Order.  However, he now understands and accepts that there was a delay of 12 days beyond the 14 days within which he should have lodged that appeal.

7.His explanation for the delay is that he was unaware of the procedure and the time within which he should lodge any appeal. He had been told by a friend that he had 30 days to do so, but then later became aware that the information given by the friend was inaccurate.

8.The Applicant also expresses his belief that I erred in my Decision, which is why he wishes to lodge the appeal.  He suggests his application for judicial review has a realistic chance of success and his ground of appeal would be able to persuade the appeal court to rule in his favour.  He also suggested that there would be no prejudice to the Director because no representations were made by him in the first place, but they could make representations in the appeal.

9.However, no Notice of Appeal was exhibited to the affirmation.  The Applicant was even unable to tell me during the hearing the case number allotted to the appeal.  I asked the Applicant what was in the Notice of Appeal.  The Applicant stated that he had filed again the documents he filed for the original application in August 2024.  In response to my question, he confirmed that he wished to raise the same arguments again on the appeal.

10.I asked the Applicant if, in the documents filed for the appeal, he had stated where and why (he says)  I had gone wrong in my Decision.  He said he had not done so.

11.However, to be fair, I have sought and called for the file relating to the appeal.  It is numbered CACV 418/2024.  There is a Notice of Appeal which does apparently seek to identify errors in my Decision, which I have considered.

12.I also note from the file in the appeal that that the Appeals Registry wrote to the Applicant on 16 October 2024, advising him that his Notice of Appeal had been filed out of time, and would require an extension of time if not to be struck out.  He was also advised that the application for extension of time should be made in the first instance to the court below, not to the Court of Appeal.  I assume it was that letter which prompted the current application.

C.  Disposal of the Application

13.I accept that the delay in this case, necessitating the application for the extension of time, is not very substantial.  The papers lodged with the Court of Appeal were 12 days late, and once made aware of the error the Applicant has fairly quickly (within one week)  made the application for the extension of time.

14.Nevertheless, relevant to the exercise of discretion to extend time are the apparent merits in the proposed appeal. Obviously, there is no point in granting any extension of time for an appeal if there is no real merit in the appeal. 

15.From what the Applicant originally told me himself, it seems that he wishes to argue the merits of his visa application and perhaps of his judicial review application again, albeit before a different court.  Though he told me at the hearing that he had not sought to identify any actual ground of appeal as to where I went wrong, the Notice of Appeal does in fact suggest I erred in several respects.  However, it seems to me that those suggestions either (1) are based upon a misreading or misunderstanding of the passages referred to, and/or (2) make points not raised before, and/or (3) importantly, still fail to identify any public law grounds of review, but rather show that the Applicant essentially does indeed wish in effect to reargue the merits of the underlying decisions made by the Director – the key decision of course being the Refusal Decision, for which the intended challenge was well out of time.

16.Therefore, with respect, I do not think the Applicant has identified any sufficient merit in his proposed appeal as might justify the exercise of discretion in his favour to extend the time within which to pursue the proposed appeal.

17.The application for an extension of time is dismissed, with no order as to costs.

The applicant, acting in person