RE HOSEN MOHAMMAD UZZAL

HCAL 518/2018

[2021] HKCFI 2034

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 518 OF 2018

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D E C I S I O N

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1.  On 12 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 18 May 2021 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 26 August 2020, and hence he was almost 9 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 almost 9 months must be considered as very substantial and excessive, for which he stated in his supporting affirmation as follows:

“2. I have been in custody since July 2018 until 17 May 2021 when I was finally acquitted by the High Court, thus was unaware of this Court’s decision.

3. I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

4. I humbly request the court to exercise its discretion to allow me to appeal out of time.”

5.  The court record shows that the decision was sent on the same day to the applicant’s last reported address provided by the Immigration Department by a letter dated 5 August 2020 and without being returned through undelivered post, and as noted above the applicant’s affirmation which appears to have been prepared by a lawyer did not disclose any further details or particulars as to where or why he was in custody during his claimed period, nor did he produce any documentary evidence to corroborate his bare assertions, while he also failed to attend the hearing of his summons without any explanation. In the circumstances, I am not satisfied that the applicant has provided any good reason for his very serious 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, while as noted above that he also failed to attend the hearing of his summons without explanation. 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.