RE EJAJ AHMED MOHAMMED

HCAL 299/2018

[2021] HKCFI 989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 299 OF 2018 

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D E C I S I O N

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1.  On 11 December 2019 I refused to extend time to the applicant’s late application for leave to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in refusing/dismissing his request to re-open his non-refoulement claim upon finding no good reason for his serious delay, 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 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 29 September 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 27 December 2019, and hence he was late by more than 9 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 more than 9 months must be considered as very substantial, for which he explained in his supporting affirmation as follows:

“I am the applicant herein. The decision made by the High Court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review he dismissed as I was in custody of Correctional Services Department. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

5.  At the hearing of his summons the applicant further explained that he was then in Tai Lam Prison for the offence of possession of dangerous drugs for 8 months until his discharge from prison in August 2020, when he was then transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he has been detained up to the presence, hence he was unable to file his intended appeal within time.

6.  The applicant was however unable to state exactly when was he sentenced to prison or when did his imprisonment commence, nor did he produce any documentary evidence in support of his assertion. The court record did reveal the following chronology of relevant correspondences between the Registry and the applicant during the material times:

(a)   11 December 2019 – Decision sent to the applicant last reported residential address provided by the Immigration Department without being returned through undelivered post;

(b)15 January 2020 - Applicant wrote to inform that he was in Tai Lam Prison and asked that his case “be pending”;

(c)  2 September 2020 – Applicant wrote from CIC to ask for a copy of the decision because he did not receive it as he was then in prison.      

7.  While accepting that the applicant may indeed have been detained in prison or at CIC up to the presence, on the basis of the information before the court, and with the burden to prove otherwise on the applicant, it cannot be excluded the possibility that the decision may have reached him shortly after 11 December 2019 prior to his alleged arrest or imprisonment, in which case the applicant would still have been able to file his appeal before or after his detention, and while there may be the inevitable delays and restrictions as to mail service and/or access to legal assistance while in detention, they could not in my view explain away the serious delay of more than 9 months in the applicant’s case. In the circumstances I am not satisfied that the decision did not reach the applicant until September 2020 as alleged.  

8.  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, while there is simply no basis for his complaint in his affirmation that he was not “allowed an opportunity to clarify his case and situation in his country” when he never requested any oral hearing for his leave application, nor could there be any clarification be made for his case when he, as apparent below, has never properly submitted his claim, and that at the hearing of his summons he could merely repeat that he should be allowed to re-open his non-refoulement claim.

9.  As noted in my decision, the applicant failed to submit his Non-refoulement Claim Form (“NCF”) to substantiate his claim despite being requested by the Director to do so more than 5 years ago, which is clearly the most basic requirement for making a non-refoulement claim as well as a statutory duty of a claimant as stipulated by the Immigration Ordinance (ss 37Y and 37ZA of Part VIIC). In the premises, 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.      

10.  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.