Baig Mirza Sher Abbas Alias Sher Abbas v. Torture Claims Appeal Board

HCAL 2425/2020

[2025] HKCFI 1618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2425 OF 2020

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BETWEEN

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D E C I S I O N

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1.On 3 September 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 16 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 17 September 2024, and hence he was 4 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 4 months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that being unrepresented that he needed to seek help with his appeal, but as he was then being detained by the Immigration Department at Tai Tam Gap Correctional Institution, it took longer time and effort for him to do so, which accounted for the delay.

5.The court record shows that the decision was indeed sent on the same day of 3 September 2024 to the Applicant’s then detention at Tai Tam Gap Correctional Institution without being returned through undelivered post, and given the availability of assistances from welfare officers stationed in Tai Tam Gap Correctional Institution, I am unable to see any good or valid reason for such serious delay of the Applicant with his intended appeal.

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 claim as before, nor was he able to do so at the hearing of his summons other than just repeating his disagreement with the Board’s decision as before. 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. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

The Applicant appeared in person