RE RAHMAN MOHAMAD ZILLUR

HCAL 203/2017

[2020] HKCFI 2847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 203 OF 2017 

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D E C I S I O N

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1.  On 18 August 2017 Deputy High Court Judge Woodcock refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 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 7 August 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 1 September 2017, and hence he was late by almost 3 years 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 almost 3 years must be considered as extremely substantial and excessive, for which he explained in his supporting affirmation and at the hearing of his summons that he was at that time in prison for undertaking unauthorized employment, and after his release from prison he lost all his documents and hence he was unable to lodge his appeal within time until recently when he was advised by his immigration officer as to how to apply for extension of time to appeal.

5.  Even accepting that he was indeed during the material time in prison and was without any legal assistance, of which he did not provide any further details such as the period and length of his incarceration, or when he was released from prison other than that it was sometime in 2018 or 2019, nor did he produce any documentary evidence in support of his claim, I am unable to find such an explanation acceptable for his serious procedural breach.      

6.  More importantly, nor did he in his summons or supporting affirmation provide any 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, and at the hearing of his summons he merely repeated his claim that his life would be in danger if refouled to his home country, and that he should therefore be allowed to remain in Hong Kong. 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, 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.