RE KADA MUSTAPHA

HCAL 983/2018

[2021] HKCFI 1603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 983 OF 2018

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D E C I S I O N

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1.  On 17 August 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 dismissing his appeal regarding 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 of Immigration 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 12 November 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 31 August 2020, 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 regarded as very substantial, for which he stated in his 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 I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the court regarding the Judicial Review be refused. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

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, while ignorance of the rules can never be accepted as any valid reason for their non-compliance. As such I am not satisfied that the applicant has provided any good reason for his substantial delay.

6.  More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, nor did he at the hearing of his summons make any attempt to clarify his case or the situation in his home country which he has complained, as noted above, of not being allowed the opportunity to do so during his leave application, when the record shows that he had never requested any oral hearing for his application in the first place. In the circumstances, 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, 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.