RE SHEIKH MOHAMMOD SUBUJ

HCAL 1517/2018

[2022] HKCFI 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1517 OF 2018

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D E C I S I O N

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1.  On 31 May 2021 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/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 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 22 April 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 15 June 2021, and hence he was more than 10 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 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 months must be considered as very substantial or inordinate, for which he first explained in his supporting affirmation as follows:

“I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the High Court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that was a litigant in person & unrepresented, thereby making me unaware of the rules regarding the time limit”. I never received any decision made by the High Court as I was serving sentence at correctional Institution and only got to know about it from my case officer after transferring to CIC. I humbly request the Court to allow my appeal out of time and give a chance to explain.”

5.  At the hearing of his summons the Applicant further clarified he was sent to prison on 18 January 2021 for undertaking unauthorized employment and hence he never received the decision in the mail sent to his then reported residential address, and that it was upon his release from prison on 9 April 2022 when he was then transferred to the Castel Peak Bay Immigration Centre (“CIC”) that he was eventually informed by his immigration officer of the Court’s decision, but by then he was already way out of time with his intended appeal.

6.  The court record shows that the decision was sent on the same day to the Applicant’s last reported residential address without being returned through undelivered post, and if indeed he was then in prison and never received the decision, for which he did not provide any documentary evidence to corroborate his bare assertion, he did concede at the hearing that he never informed the authorities of his change of address, which was his duty to do so as soon as practicable, and hence he has only himself to blame for the serious delay with his intended appeal, and for which I am not satisfied that he has provided a good reason.

7.  More importantly, 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 either in his summons or his affirmation, while his complaint in his affirmation of not being given any opportunity to clarify his case or situation of his country, of which I take to mean that there was no oral hearing scheduled for his leave application before the Court, the fact is that he never requested for one in the first place, and at the hearing of his summons despite the Court’s invitation for him to do so, he could only repeat his claim as before that he still has the same problem in his home country that he cannot go back. 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.

8.  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.