RE SHABBIR FALAK

HCAL 183/2022

[2022] HKCFI 3749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 183 OF 2022

_____________

_____________

_____________

D E C I S I O N

_____________

1.  On 11 August 2022 I refused to extend time to the late application of the applicant for leave 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 there was no good reason for his serious delay of 7 months with his application, 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 26 September 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 25 August 2022, and hence he was 1 month 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 1 month must be considered as substantial and inordinate, for which he explained at the hearing of his summons that he received the decision in the email late in about mid-September 2022 when by then he was already out of time with his intended appeal.

5.  The court record shows that the decision was sent on the same day of 11 August 2022 to the applicant’s last reported address and the same as stated in his present application without being returned through undelivered post, and in the absence of any further details or documentary evidence such as the envelop which contained the decision to show the actual postmark to corroborate his bare assertion, I am not satisfied that the applicant has provided a good or valid reason for his serious delay.

6.  More significantly, the applicant 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 in his affirmation, and that at the hearing of his summons he could only repeat his claim as before that his life is still in danger in his home country that he cannot return. 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.