RE MUHAMMAD NAZEER

HCAL 56/2016 and

HCAL 88/2021

(Consolidated)

[2022] HKCFI 3365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 56 OF 2016

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 88 OF 2021

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(Consolidated pursuant to the Order of

Deputy High Court Judge Bruno Chan dated 1 March 2022)

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D E C I S I O N

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1.  On 29 March 2022 I refused to grant leave to the applicant to apply for judicial review of 2 decisions of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition 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 processes 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 applications.

2.  The applicant now by a summons issued on 22 June 2022 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 the High Court, Cap 4A ended on 12 April 2022, and hence he was more than 10 weeks 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 10 weeks must be considered as very substantial and inordinate, for which he explained at the hearing of his summons that he being an unrepresented litigant was unaware of the 14-day rule for the filing of his appeal, and that by the time he was able to obtain legal assistance with his intended appeal, he was already out of time.

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 as ignorance of the rules can never be accepted as an excuse for their non-compliance, and given the substantial delay on his part, I am not satisfied that he has provided any good or valid reason for his serious delay.

6.  More significantly, the applicant has failed to 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 in his summons, while his only complaint in his affirmation of not being given an opportunity to clarify his case and situation in his home country is simply factually incorrect as he did appear before the court on 1 March 2022 for the hearing of his leave application during which he was given every opportunity to make representations for his case, and that at the hearing of his summons he just claimed to have stayed in Hong Kong for many years that he does not want to leave. 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.