SHAHZAD KHURRAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1614/2019

[2024] HKCFI 3182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1614 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 17 September 2024 seeking extension of time to appeal the order of this Court dated 15 February 2024 (the “Order”)  refusing his application for leave to apply for judicial review (the “leave application”)  of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office.

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 17 September 2024 when the Summons was filed, this application was six months and seventeen days out of time.  Leave to appeal out of time is required. 

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of the delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if extension of time was granted.  Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time.  The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion

4.  The application is more than six and half months out of time, which is very substantial in the context of a 14-day period of appeal.  In his supporting affirmation, the Applicant claimed he had never received the Order.  To assist him to present a proper application for extension of time to appeal, directions were given to him to file an affirmation or a statement within 14 days of the directions setting out, inter alia:

(1)  the date when and circumstances under which he first came to know about the Order;

(2)  all his correspondence addresses since 13 June 2019 when he filed his leave application (Form 86);

(3)  the date and particulars of all changes of correspondence address thereafter, and the dates when he informed the Court and the Immigration Department of the changes, and

(4)  the grounds of his intended appeal. 

 As at the date of this decision, the Applicant has not responded.

5.  The Order and Form CALL-1 had been sent to the Applicant’s last known address in Sham Shui Po on 15 February 2024 as stated by him in his leave application.  The Applicant had never informed the Court of any change of address since filing his leave application on 13 June 2019.  The Court noted from his Summons and supporting affirmation that he is currently residing at a different address, albeit in Sham Shui Po.  He had never informed the Court of his change of address since filing his leave application.  If he genuinely had not received the Order and Form CALL-1, it could possibly be due to his failure to inform the Court of his change of address.  Without his complying with the directions, this Court could have no way to know if he has a reasonable explanation for the delay.  This Court could not assess the reasonableness of the long delay. Furthermore, as was held by the Court of Appeal in Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], it is the applicant’s obligation to keep the court informed of his means of contact.  If he does not, he has to bear the consequence which his failure brings. 

6.  The Applicant has also not put forward the grounds of his intended appeal, this Court could not assess if his intended appeal has any prospect of success.

Conclusion

7.  In conclusion, despite clear directions having been given to the Applicant to provide information required to support an application for extension of time, he wholly failed to provide any information to enable this Court to determine if he has a reasonable explanation for the very substantial delay of more than six and half months and to assess the  prospect of success of his intended appeal.  The only inference this Court could draw is that he has neither a reasonable explanation for the substantial delay nor grounds of appeal with prospect of success.  His application is just an abuse of process which is calculated to delay his refoulement process.  In the circumstances, there is no need to consider prejudice to the respondent.  Accordingly, his application for extension of time is refused.