RE AHMAD HAFIZ ZULIFQAR

HCAL 329/2018

[2021] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 329 OF 2018 

_____________

_____________

_____________

D E C I S I O N

_____________

1.  On 29 March 2019 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 7 December 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 12 April 2019, and hence he was late by about 1 year and 8 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 1 year and 8 months must be considered as inordinate and excessive, for which he stated in his supporting affirmation as follows:

“I am the Applicant herein. I am presently detained by the ImmD authorities. 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 be refused and was never served with Notice of Appeal of hearing 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 clarified that sometime in January 2019 he was arrested by police for undertaking unauthorized employment but was subsequently released on bail in February 2019, and then in September 2019 he was convicted as charged and was sentenced to prison until November 2020 when he was then transferred to the Castle Peak Bay Immigration Centre, and it was then when he was informed by his immigration officer of the decision, but by then he was already out of time with his intended appeal.

6.  The court record shows that the decision was sent on the same day of 29 March 2019 to the applicant’s then reported address without being returned through undelivered post, and that even on his own case it was at a time between his release on bail in February 2019 and his subsequent imprisonment in September 2019 that his bare assertion of never receiving the decision in the mail to his then reported address is not acceptable in the absence of any corroborating evidence and for such a serious delay.         

7.  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 in his said affirmation he failed to provide any particulars or elaboration as to why the decision was said to have been reached unfairly, and contrary to his assertion of not given any opportunity to clarify his case his case or the situation in his home country, he did attend an oral hearing for his leave application for judicial review during which he was given every opportunity to do so regarding his case, while at the hearing of his present application he did not put forward any further or proper grounds of 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.      

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.