SULEMAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 337/2019

[2025] HKCFI 651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 337 OF 2019

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D E C I S I O N

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1.  On 14 November 2023 I refused to extend time to the seriously late application by the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his non-refoulement claim upon finding that there was no good reason for his very serious delay of more than 14 months with his application, that none of the grounds put forward by him 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 2 December 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file his appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap. 4A expired on 28 November 2023, and hence he was more than 11 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 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 11 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that after receiving the Court’s decision refusing his application which he intended to appeal, but when he was informed by his family that it was safe for him to return to Pakistan, and so he informed the Immigration Department of his wish to leave Hong Kong and to make arrangement for his return to his home country, but then later he was informed by his family that it was still dangerous for him to return to Pakistan, and so he changed his mind and decided to proceed with his appeal, but by then he was already out of time to do so.

5.  The court record shows that the decision was sent on the same day of 14 November 2023 to the Applicant’s then reported address without being returned through undelivered post, and even if his bare assertions which were without any necessary or relevant details or supporting evidence were true that a delay caused by a change of mind over the continuation of legal proceedings can never be accepted as any valid reason or excuse for the non-compliance of procedural requirements. As such I am not satisfied that the Applicant has provided any good or valid reason for his such serious delay.

6.  More importantly, 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 his affirmation in which he just repeated his claim as before with citations of various applicable legal principles and with a bare assertion that the Court’s decision was wrong for not applying the relevant legal principles but without providing any details or particulars or elaboration as to how it was so, nor was he able to do so at the hearing of his summons. 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. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.