RE UDDIN MD NASIR

HCAL 1491/2018

[2021] HKCFI 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1491 OF 2018

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D E C I S I O N

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1.  On 24 August 2020 I refused to grant leave to the applicant 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, and that there was no reasonable prospect of success in his intended application.

2.  The applicant now by a summons issued on 14 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 expired on 7 September 2020, and hence he was late by more than 5 weeks 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 5 weeks must be considered as significant, for which he explained in his affirmation that he was handed the decision by his landlord, who has control of the key to the residence’s mailbox, only on 6 October 2020 when by then he was already out of time with his intended appeal, and for which he also needed his friend to assist him in preparing the relevant documents for his appeal which caused further delay.

5.  The applicant did not however produce any evidence such as an affirmation from his landlord to corroborate his assertion, but as the court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and given the normal practice for local mails to be delivered to their destination within one or two days of their posting, the decision should have arrived at the applicant’s reported address before end of August 2020 at the latest, and I fail to see why his landlord would have waited more than a month to give him the decision, if indeed the applicant had no direct access to the mailbox as he so claimed. In the circumstances I am not satisfied that he has established any good or valid reason for his significant 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 in which he merely repeated his claim that his life would still be in danger due to problems in his home country, and at the hearing of his summons he merely repeated the same without putting forth any proper grounds for his intended appeal. 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, 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.