RE ZZAMAN MD ASADU

HCAL 638/2017

[2021] HKCFI 2954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 638 OF 2017

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D E C I S I O N

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1.  On 3 July 2018 Deputy High Court Judge Woodcock refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing his appeal/petition regarding his non-refoulement claim upon finding that 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 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 9 March 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 ended on 17 July 2018, and hence he was more than 19 months 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 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 The 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 19 months must be considered as extremely substantial, for which he explained at the hearing of his summons that he had been sent to prison in 2018 for two years over a drug offence and hence never received the decision in the mail, and upon his discharge from prison in January 2020 he was then transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he has since been detained, and it was then when he was informed of the decision when by then he was already way out of time with his intended appeal.

5.  The court record shows that the decision was indeed sent on the same day to the applicant’s last reported residential address when by then he would be in prison and would not have received it, but surely it was his duty to inform the Immigration Department of his imprisonment so that the decision could have been resent to him there instead of only being informed of the decision at CIC in January 2020, for which he had only himself to blame for his serious delay, and for which I am not satisfied that he has provided a good reason for his default.

6.  More importantly, the applicant has also 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 either in his summons or his affirmation in which he merely stated to have a good ground of appeal but without stating what it is, while in his subsequent letter dated 12 July 2021 to the court he just repeated his claim as before of still having problem in his home country that he fears of being killed by his enemy if refouled to Bangladesh but without putting forth any proposed grounds for his intended appeal, nor was he able to do so at the hearing of his summons.  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.  Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.