Rezaul Mohammad v. Torture Claims Appeal Board

HCAL 155/2019

[2025] HKCFI 1616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 155 OF 2019

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BETWEEN

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D E C I S I O N

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1.On 30 December 2022 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 23 January 2025 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 January 2023, and hence he was more than 2 years 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 2 years must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that he was arrested by police on 26 June 2022 for burglary and was remanded in police custody until his subsequent conviction by the court which then sentenced him to prison for 22 months, and that upon his discharge from prison in December 2023, he was then transferred to the Immigration Department where he has since been detained at Tai Tam Gap Correctional Institution, and hence he never received the court’s decision in the mail until after he was so informed by his immigration officer during his detention that he eventually requested and received a copy from the Court in April 2024 which explained for the delay with his intended appeal.

5.The court record shows that the decision was first sent on the same day of 30 December 2022 to the Applicant’s then reported address at G/F, DD 117 Lot 274, Shui Tsui San Tsuen, No. 319A, Yuen Long, New Territories in his Form 86 but was later returned through undelivered post, and upon subsequent confirmation by the Immigration Department by a letter dated 7 February 2023 of another address of the Applicant at Room 2, Flat D, 6/F, Fuk Yip Building, 12 Kik Yeung Road, Yuen Long, the decision was accordingly re-sent on 9 February 2023 to the Applicant at that address without being returned through undelivered post.

6.However, given the Applicant’s assertions made at the hearing, and upon further enquiry by the Court, the Immigration Department by a letter dated 10 April 2025 confirmed that the Applicant was indeed arrested on 25 June 2022 for burglary and was remanded in police’s custody until his subsequent conviction on 4 October 2023 when he was sentenced to prison for a total term of 26 months, and that after serving his prison term he was then referred to the Immigration Department and was subsequently transferred to Tai Tam Gap Correctional Institution on 8 December 2023 for detention up to now.

7.Henceforth, the address earlier provided by the Immigration Department on 7 February 2023 and which the Court’s decision was accordingly re-sent to the Applicant on 9 February 2023 was therefore incorrect, as the Applicant was clearly then in police’s custody for the burglary offence and could not have received the decision.

8.The record also reveals that the Applicant did subsequently on 8 April 2024 from his detention write to the Court for a copy of the decision, which seems to corroborate his assertion of not aware of the decision until he was so informed by his immigration officer during his detention at Tai Tam Gap Correctional Institution, and that accordingly a copy of the decision was sent by the Court on 18 April 2024 to him at his detention.

9.As such, and given the Applicant’s circumstances at the material times, I am prepared to disregard his required duty to update the relevant authorities of his latest address while even in police’s custody or in detention, and to according put back the deadline for him to file his appeal to 4 May 2024, which would reduce his delay to some 8 months, but which is clearly still very substantial, and for which I am unable to see any valid reason or justification given the fact that assistances from welfare officers stationed at his detention were readily available to the Applicant at all time.

10.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 other than that he was not satisfied with the decision. 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.

11.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