RE ALI HAIDAR

HCAL 600/2018

[2021] HKCFI 543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 600 OF 2018

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D E C I S I O N

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1.  On 24 May 2019 I refused to extend time to the applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in refusing to allow his late filing of his notice of appeal against the earlier decision of the Director of Immigration (“the Director”) in rejecting his non-refoulement claim upon finding no good reason for his seriously late application, 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 28 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 7 June 2019, and hence he was late by more than 15 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 15 months must be considered as extremely substantial and excessive, for which he explained at the hearing that he had been detained at the Castle Peak Bay Immigration Centre (“CIC”) at all material time, that he never received the decision in the mail even after his release, and hence he was not aware of it until sometime in September 2020 when he reported to the Immigration Department on his recognizance that he was informed by an immigration officer, but that by then he was already way out of time with his intended appeal.

5.  The applicant did not provide any further details of the time frame of his detention at the CIC, which is indeed where he was at the time when he filed his Form 86 for leave to apply for judicial review on 10 April 2018, but according to the subsequent written confirmation of the Immigration Department dated 19 March 2019, the applicant was in fact already released on recognizance on 31 December 2018 with a reported address to which the court decision was subsequently sent by post on 24 May 2019 when it was delivered, and that the court record shows that it has never been returned through undelivered post. In the circumstances I do not accept that the applicant has never received the decision in the mail as alleged, or that he has provided any good reason for his such serious 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 in his summons, while in his supporting affirmation he merely repeated his claim that he would be killed by his creditor for failing to repay his loan if returned to his home country in India, and that it would also be too dangerous for him to do so given the current serious Covid-19 pandemic situation in India, but of which I find to be wholly irrelevant for his intended appeal.

7.  As such and in the absence of any error in the decision being clearly and properly identified by the applicant, and given the unchallenged and correct finding by the Director, and as noted in my decision, that the risk of harm in the applicant’s claim even on his own case is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India and hence no justification at all to afford him with non-refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526, I do not see any prospect of success in his intended appeal.       

8.  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.