MUHAMMAD ALI PAHAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 2700/2019

[2023] HKCFI 2589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2700 OF 2019

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D E C I S I O N

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1.  On 26 July 2023 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding 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 of Immigration (“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 17 August 2023 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 9 August 2023, and hence he was some 8 days 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 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 8 days may not be considered as significant, for which he explained at the hearing of his summons that he was then being detained at Tai Tam Gap Correctional Institution in which he had had difficulties getting legal assistance for his intended appeal which accounted for the short delay.

5.  The court record shows that the decision was sent on the same day of 26 July 2023 to the Applicant’s then detention at Tai Tam Gap Correctional Institution without being returned through undelivered post, but given the relatively insignificant delay and the inevitable inconvenience in receiving mails and seeking legal assistance while in detention, I propose to focus on the prospects of the Applicant’s intended appeal.

6.  The Applicant did not however provide any draft or proposed grounds of appeal against the decision in his summons, and in his supporting affirmation filed on the same day and his subsequent letter dated 11 September 2023 with attached statements and documents, he merely repeated his claim and his complaints against the Director and the Board for rejecting his claim as before rather than identifying any error in the Court’s decision in refusing his leave application for judicial review or why it may reasonably be argued that the Court’s decision was unfair or unreasonable in any of his statements, nor was he able to do so at the hearing of his summons. 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. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.