RE SHAHIN MIAH MD

HCAL 2712/2018

[2021] HKCFI 3076

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2712 OF 2018

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D E C I S I O N

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1.  The Applicant, by summons dated 9 August 2021 applies for extension of time to appeal against the decision of Deputy High Court Judge To (“the Court”) made on 24 June 2021 refusing to grant leave to the Applicant for judicial review of the decision of the Torture Claims Appeal Board in dismissing his appeal from the decision of the Director of Immigration regarding his non-refoulement claim.

2.  The 14 days period for the Applicant to file his appeal against the decision of the Court ended on 8 July 2021 and hence he was one month late with his intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, a 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.

4.  In the Applicant’s case, this delay of one month is not insignificant.  In his affirmation in support of this application to extend time, he stated that he did not receive the order and judgment of the Court within the 14 days limit for appeal.

5.  The court record shows that the order and judgment of the Court was sent on the same day that decision was made to the last reported address of the Applicant, which is the same address given by the Applicant in this application. It is therefore inconceivable that the Applicant did not receive the same within the 14 day period for appeal.  I therefore cannot accept the explanation given by the Applicant for the delay and am not satisfied that the Applicant has provided any good reason for the delay of one month.

6.  As for the prospect of the intended appeal, the Applicant has not put forward any proper or valid draft or proposed grounds of appeal.  Neither has the Applicant alluded to any particulars of any error in the decision of the Court or why it can be said that the decision of the Court was unfair or unreasonable either in his summons or in his affirmation in support.

7.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

8.  This being an application to extend time for appealing against the decision of the Court, it is for the Applicant to show there is a reasonably arguable appeal.  This he has not done.

9.  In the premises, and for the reasons given, it would be futile to extend time for what would appear to be a hopeless appeal.  Accordingly, I refuse the Applicant’s application for extension of time to appeal against the decision of the Court and dismiss the present summons.