HALIM MIAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2188/2020

[2023] HKCFI 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2188 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 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 rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his 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 28 December 2022 sought 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 the High Court, Cap 4A expired on 17 September 2021, and hence he was more than 15 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case, a delay of more than 15 months must be considered as extremely substantial and inordinate, for which he stated in his affirmation as follows;

“I am the applicant herein. The decision made by the Deputy High Court judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the court regarding the Judicial Review be refused. I humbly request the court to allow my appeal out of time and give a chance to explain.”

5.  However, at the subsequent hearing of his summons, the applicant requested to withdraw his application as he no longer wants to appeal, and that he just wants to return to his home country as soon as possible.

6.  Given his confirmation that he is fully aware of the consequences of withdrawing his application which would in effect put an end to any appeal or legal challenge regarding his non-refoulement claim, and as I also note that he also failed to put forward 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, I do not see any prospect of success in his intended appeal in any event.

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