RE MUZAFAR IQBAL

HCAL 655/2018

[2022] HKCFI 1280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 655 OF 2018

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D E C I S I O N

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1.  On 2 September 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal regarding his non-refoulement claim upon finding that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 2021 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 September 2020, and hence he was more than 1 year 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 1 year must be considered as extremely substantial and inordinate, for which he simply stated in his affirmation that he did not receive the decision in the mail but without providing any further details or evidence such as if indeed that was the case that how did he eventually come to learn about the decision which he now wants to appeal, nor did he attend the hearing of his summons to do so without any explanation.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and in the absence of any details or evidence to corroborate his barest of assertion, I am not satisfied that the Applicant has provided any good reason for his such serious delay.

6.  More importantly, nor has the Applicant put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or his affirmation, and as noted above he also failed to attend the hearing of his summons without any explanation. 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, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.