RE SHAIKH AFZAL

HCAL 1949/2020

[2021] HKCFI 3295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1949 OF 2020

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D E C I S I O N

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1.  On 27 May 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal/petition regarding 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 on 11 June 2021 sent a summons by post to the High Court Registry for extension of time to appeal against that decision, but it was subsequently returned to him for proper formal filing, and later when it had been verified with him that he was then being detained at Tai Tam Gap Correctional Institution, his summons was accepted as filed on 2 August 2021 as an application for extension of time to appeal against the 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 ended on 10 June 2021, and he was by then more than 7 weeks 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 The 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 7 weeks must be considered as very substantial, but given that he was then as noted above in detention and that he did earlier try to issue his summons by post on 11 June 2021 when he would have been late with his intended appeal by only one day, I propose to focus on the prospect of his intended appeal.

5.  However, the Applicant did not 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 complained that the Court disposed of his leave application without any oral hearing but which had in fact never been requested by him in the first place. As such and in the absence of any error in the decision being clearly and properly identified by the Applicant or of any prejudice which he might have suffered due to the absence of any oral hearing for his leave application, I do not see any prospect of success in his intended appeal.

6.  Furthermore, the Applicant recently on 21 October 2021 wrote to the Court to request to withdraw his application as his problem has been resolved and that he wants to return to his home country as soon as possible.   

7.  In the premises, and as it would for the reasons given be futile to extend time for what appears to be a hopeless appeal, I accede to the Applicant’s request and accordingly dismiss his summons.