RE S M NAHIDI

HCAL 557/2021

[2021] HKCFI 3259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO  557 OF 2021

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D E C I S I O N

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The application

1.  The Applicant, by summons dated 21 July 2021, applies for extension of time to appeal against the decision of Deputy High Court Judge To (“the Court”)  given on 29 June 2021 refusing to grant leave to the Applicant for judicial review of the decision of the Torture Claims Appeal Board dismissing the Applicant’s appeal against the decision of the Director of Immigration regarding the Applicant’s non-refoulement claim.

2.  The 14 day period for the Applicant to file his appeal against the decision of the Court ended on 13 July 2021 and hence he was 8 days 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 was of 8 days which is not insignificant.  In his affirmation in support, the Applicant stated that the reason for the delay was because he did not get the decision of the Court.

5.  The court record shows that the decision of the Court was sent on the same day the decision was made to the Applicant at his last reported address (which is the same address stated by him in his present summons)  without it being returned to the court as undelivered post.

6.  I therefore cannot accept his explanation for the delay.

7.  As for the prospect of the intended appeal, the Applicant has not put forward any proper or valid draft or proposed grounds of appeal.  Nor has the Applicant alluded to any particulars of any error in the decision of the Court or why it can be said that the decision of the Court was unfair or unreasonable.

8.  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].”

9.  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.

10.  In the premises, 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.