RE JATTA OMAR

HCAL 554/2018

[2021] HKCFI 14

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 554 OF 2018

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D E C I S I O N

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1.  On 17 August 2020 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (”the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding 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 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 September 2020 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A expired on 31 August 2020, and hence he was late by 23 days 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 an 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 23 days cannot be considered as insignificant, for which he explained at the hearing of his summons that after he received the decision, he did not know what to do, and it was only when he made his regular report to the Immigration Department that he was advised how to go about making his appeal but by then he was already out of time.

5.  Ignorance of the law cannot of course be accepted as any valid reason for one’s failure of its compliance, and as the court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, I do not find any good or valid reason for his delay.

6.  More importantly, nor did he put forward either in his summons or his supporting affirmation any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, and that at the hearing of his summons he merely repeated his claim that his problem still exists in his home country that he should be allowed to remain in Hong Kong. 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, 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.