RE TAHIR MUHAMMAD

HCAL 2186/2018

[2021] HKCFI 684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2186 OF 2018

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D E C I S I O N

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1.  On 24 August 2020 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 15 October 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 expired on 7 September 2020, and hence he was late by more than 5 weeks 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 5 weeks must be regarded as substantial or excessive, for which he explained at the hearing of his summons that he never received the decision in the mail until when he reported to the Immigration Department on his recognizance that he was informed of the decision, but by then he was already out of time with his intended appeal.

5.  The court record indeed shows that the decision sent on the same day to the applicant’s last reported address had been returned unclaimed, and that the applicant was subsequently contacted by the Registry to come to the court to collect the decision, which he did on 15 October 2020, and later on the same day he issued his summons now before me.

6.  At the hearing of his summons the applicant confirmed that he had never received the decision in the mail, although he still resides at the same address, and it is not clear why the decision so sent had been returned through undelivered post, but the fact remains that he only received the decision on 15 October 2020 at the Registry when the 14-day period for him to file his appeal only started to run, and hence when he was advised to issue his summons for extension of time later on the same day, he was in fact not out of time to appeal.         

7.  By now he is of course out of time. In the premises, it is only fair that the time for him to file his appeal be extended, and accordingly I extend time for him to do so within 14 days of this decision.