RE SHEIKH MOHAMMAD MITHU

HCAL 2376/2018

[2021] HKCFI 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2376 OF 2018

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D E C I S I O N

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1.  On 19 August 2020 I dismissed the applicant’s application for leave 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, that there was no reasonable prospect of success in his intended application, and upon his subsequent request to withdraw his application as his claimed problem in his home country had been resolved.

2.  The applicant now by a summons issued on 30 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 2 September 2020, and hence he was late by almost 2 months 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 almost 2 months must be considered as substantial or significant, for which he did not provide any explanation in his summons or supporting affirmation in which he just stated that he does not want to return to his home country.

5.  The court record shows that the decision was sent on the same day to the applicant’s last reported address which is the same as stated in his present application and which has never been returned through undelivered post, while a change of mind over the proceedings can never be accepted as an excuse for procedural breaches. In the circumstances I am not satisfied that the applicant has any good reason for his delay.

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 in his affirmation, and that he also failed to attend the hearing of his summons without any explanation. Given the fact that he had earlier requested to withdraw his application as his problem at home has been resolved, 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.