RE ISLAM MOHAMMAD JAHIRUL

HCAL 818/2018

[2021] HKCFI 888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 818 OF 2018

_____________

_____________

_____________

D E C I S I O N

_____________

1.  On 3 September 2020 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 regarding his non-refoulement claim upon finding 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 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 23 October 2020 seeks 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 High Court, Cap 4A ended on 17 September 2020, and hence he was late by 5 weeks 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 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 Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case, a delay of 5 weeks must be considered as substantial or significant, for which he explained at the hearing of his summons that he was afraid to go out of his home to file his appeal due to the Covid-19 pandemic until he later received a telephone call from the court, and so he finally came to the court to file his intended appeal but by then he was out of time.

5.  The court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and given the fact that the applicant was required to make a regular report to the Immigration Department on his recognizance which he admitted at the hearing that he did do so during the month of September 2020 notwithstanding his alleged fear of going out due to the Covid-19 pandemic. In the circumstances I am not satisfied that he has any good reason for his delay with his intended appeal.

6.  More importantly, nor did he 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 be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, and at the hearing of his summons he just stated that he wants to stay in Hong Kong. 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, 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.