MUHAMMAD AMIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1447/2022

[2024] HKCFI 1221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1447 OF 2022

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BETWEEN

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D E C I S I O N

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1.  On 10 March 2023 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing 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 now by a summons issued on 2 April 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A expired on 24 March 2023, and hence he was more than 12 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 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 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 12 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that he never received the decision in the mail and hence was not aware of it until sometime in early 2024 when he was advised by his friends to check with the court that he was finally informed that the decision had already been handed down on 10 March 2023, but by then he was way out of time with his intended appeal.

5.  The court record indeed shows that the decision sent on the same day of 10 March 2023 to the Applicant at the Castle Peak Bay Immigration Centre where he was detained when he made his leave application for judicial review and at his then reported residential address at Shamshuipo, Kowloon had both been returned through undelivered post, and subsequent enquires with the Immigration Department revealed that he had upon his release from detention moved to his present address at Tai Kok Tsui as the same stated in his present application but without informing the Court thereof, and for which he had only himself to blame for failing to comply with his duty to update the Court of his such change of address. Nevertheless, I shall proceed to consider whether there is any merit in his intended appeal.

6.  However, the Applicant failed to 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, nor was he able to do so at the hearing of his summons other than a mere regurgitation of his claim as before that his life would still be in danger in his home country. 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, and for the reasons given, 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.