JOOF SAIHOU v. TORTURE CLAIMS APPEAL BOARD

HCAL 509/2023

[2023] HKCFI 3021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 509 OF 2023

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BETWEEN

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D E C I S I O N

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1.  On 9 August 2023 I refused to extend time to the seriously late application of the Applicant for leave 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 there was no good reason for his serious delay of more than 18 months, 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 by a summons issued on 5 October 2023 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 High Court, Cap. 4A ended on 23 August 2023, and hence he was some 6 weeks 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 6 weeks must be considered as substantial and inordinate, for which he explained in his affirmation that he has been detained at Tai Tam Gap Correctional Institution by the Immigration Department since his discharge from prison for his drug offence and was without free access to legal assistance that accounted for his delay.

5.  The court record shows that the decision was sent on the same day of to the Applicant’s then detention without being returned through undelivered post, and while accepting the inevitable delays to mail service and inconvenience in obtaining legal assistance while in prison or detention, I am not satisfied that they can be accepted as justification for the Applicant’s serious delay.

6.  More importantly, the Applicant also 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 in which he just repeated his claim as before. 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.  Moreover, shortly after the issue of his summons, the Applicant was on 6 November 2023 removed by the Immigration Department from Hong Kong and repatriated to his home country.

8.  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.