RE HOSSAIN MOHAMMAD BILLAL

HCAL 486/2019

[2021] HKCFI 3111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 486 OF 2019

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D E C I S I O N

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The application

1.  The Applicant, by summons dated 19 March 2021, supported by an affirmation of the Applicant, applies for extension of time to appeal against the decision of Deputy High Court Judge C. P. Pang (“the Court”) given on 28 January 2021 refusing to grant leave to the Applicant for judicial review of the decision of the Torture Claims Appeal Board in dismissing his appeal from the decision of the Director of Immigration regarding his non-refoulement claim.

2.  The 14 day period for the Applicant to file his appeal against the decision of the Court ended on 11 February 2021 and hence he was well over one month late with his intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, a 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.

4.  In the Applicant’s case, the delay of well over a month is not insignificant.  In his affirmation in support, the Applicant explained the delay by saying that he did not get any letter from the High Court, presumably referring to the letter from the High Court by which the decision of the Court and the order was sent to the Applicant.

5.  The court record shows that the decision of the Court and the order was sent on the same day that decision of the Court was made to the last reported address by the Applicant, under cover of a letter of the High Court dated 28 January 2021.

6.  However, when the Applicant filed the present summons on 19 March 2021, the Applicant had given an address on the summons, which was the same in all respects except that the street number was different.

7.  On 16 June 2021, Deputy High Court Judge To (“DHCJ To”) gave certain directions relating to the summons filed by the Applicant on 19 March 2021.  Those directions of DHCJ To were sent to the Applicant at the address he had given on the summons of 19 March 2021 but that letter was returned to the High Court undelivered and marked on it as having “No such address”

8.  By letter dated 21 September 2021, the Immigration Department confirmed to the High Court that the correct address of the Applicant to be the last reported address with the court, instead of the one given in her summons.

9.  That was the same address to which the decision of the Court and the order was sent to the Applicant under cover of a letter dated 28 January 2021.

10.  As a result, the directions of DHCJ To was resent the Applicant’s correct address on 24 September 2021 by the High Court.

11.  It cannot be ruled out that the incorrect address was put down on the present summons filed on 19 March 2021 by the Applicant to muddy the water and to lend some credence to his saying that he did not receive the decision of the Court.  However, while that incorrect address did cause some hiccup to the sending by post of the directions given by DHCJ To, it could not have affected in any way the delivery of the decision of the Court made on 28 January to the Applicant.

12.  I am therefore not satisfied that the Applicant has given any satisfactory explanation for his delay in the intended appeal.

13.  As for the prospect of the intended appeal, the Applicant has not put forward any proper or valid draft or proposed grounds of appeal.  Neither has the Applicant alluded to any particulars of any error in law in the decision of the Court or why it can be said that the decision of the Court was unfair or unreasonable either in his summons or in his affirmation.  All that he said in his summons is that he wanted to challenge the decision of the High Court in refusing him leave for judicial review.

14.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held :

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

15.  This being an application to extend time for appealing against the decision of the Court, it is for the Applicant to show that there is a reasonably arguable appeal.  This he has not done.

16.  In the premises, and for the reasons given, it would be futile to extend time for what would appear to be a hopeless appeal.  Accordingly, I refuse the Applicant’s application for extension of time to appeal against the decision of the Court and dismiss the summons.