RE SHAN MUHAMMAD

HCAL 350/2017

[2021] HKCFI 45

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 350 OF 2017

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D E C I S I O N

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1.  On 15 December 2017 Deputy High Court Judge Woodcock refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the 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 20 August 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 29 December 2017, and hence he was late by more than 2 ½ years 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  2 ½ years must be considered as extremely substantial and excessive, for which he explained at the hearing of his summons that after his leave application for judicial review was refused by the court, he was prepared to return to his home country, and was waiting to be deported by the Immigration Department, but later when he heard that his problem at home had still not been resolved, he decided not to return home and instead to appeal against the decision, but by then he was already way out of time with his intended appeal. 

5.  The Applicant was however unable to provide any further or documentary evidence in support of his assertion, while a change of mind about one’s intention to appeal can never be accepted as a valid reason for delay, I am not satisfied that there is any good reason for the Applicant’s 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 in his affirmation, 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, 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.