RE AHMAD IRFAQ

HCAL 1082/2017

[2021] HKCFI 1204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1082 OF 2017

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D E C I S I O N

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1.  On 2 October 2019 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing 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 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 9 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 16 October 2019, and hence he was more than 13 months 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 more than 13 months must be considered as inordinate and excessive, for which he explained both in his supporting affirmation and at the hearing of his summons that he had been too busy taking care of his child as his wife had to work, that his wife had kept the key to their mail box and hence he could not get to retrieve the decision on time, and that later he was afraid to go out due to the Covid-19 pandemic in 2020 that by the time he was ready to file his intended appeal, he was already out of time.

5.  The court record shows that the decision was sent on the same day to the applicant’s last reported address which is the same as stated in his present application without being returned through undelivered post, and that even if what the applicant had asserted above for his failure to file his intended appeal were indeed true, I do not find any of them as a valid or 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 either in his summons or affirmation, and at the hearing of his summons he merely repeated his claim as before. 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.