RE DIALLO MAMADOU BAILO

HCAL 1159/2018

[2022] HKCFI 677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1159 OF 2018 

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D E C I S I O N

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1.  On 15 December 2021 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 dismissing his appeal regarding his non-refoulement claim upon finding that there was no good reason for his substantial delay, that he had failed to put forth any proper or valid ground for his intended challenge in his Form or affirmation and as he also failed to attend the hearing without explanation, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 8 February 2022 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 29 December 2021, and hence he was almost 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 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 6 weeks must be considered as substantial or inordinate, for which he explained at the hearing of his summons that he was at that time serving a prison sentence in Hei Ling Chau Correctional Institution and never received the decision which was sent to his residential address in Sheung Shui, and that it was his wife who later informed him of the decision, but as he was then in prison and was thereafter transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he was able to find help for the necessary documents for his appeal, but by then he was already out of time with his intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and even accepting that the Applicant was then indeed in incarceration with the inevitable restrictions on incoming and outgoing mails and in assessing legal assistance, I am not satisfied that they would constitute good enough reasons for his such serious delay.

6.  More importantly, the Applicant has 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 his affirmation in which he just stated that the decision was reached unfairly without providing any details or particulars as to how it was so, nor was he able to do so at the hearing of his summons other than that he now has a family here in Hong Kong that he does not want to leave. 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. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.