KALEEM SHEIKH alias FAROOQ KALEEM alias FAROOQ AHMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 2546/2019

[2025] HKCFI 4167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2546 OF 2019

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D E C I S I O N

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1.  On 21 March 2025 Deputy High Court Judge Reuden Lai 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 20 June 2025 seeks leave to appeal against that decision out of time, 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 7 April 2025, and hence he was almost 2 ½ 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 almost 2 ½ months must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he never received the decision in the mail, and that it was only in early June 2025 when he was so informed by his immigration officer that he was able to subsequently obtain a copy, but by then he was already out of time with his appeal.

5.  The court record shows that the decision was sent on the same day of 21 March 2025 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any further evidence to corroborate his bare assertions, I am not satisfied that he has provided a good or valid reason for his such 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 referred to his heart problem for which he has been receiving medical attention in a hospital in Hong Kong that he would like to be able to continue, and which he repeated at the hearing of his summons but without putting forth any proper grounds of appeal, and while I note that he did mention his medical condition to the Director and the Board as evidenced in their decisions as part of his factual background situation, it was never raised as a basis for his non-refoulement claim, and henceforth cannot in my view form any proper ground of appeal against the Board’s decision. 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 to grant leave to the Applicant to appeal out of time, and dismiss his summons.