DANISH ARSHAD MEHMOOD alias DANISH ARSHAD MOHMOOD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1235/2018

[2023] HKCFI 2588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1235 OF 2018

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D E C I S I O N

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1.  On 3 June 2021 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 non-refoulement claim upon finding no good reason for his serious delay of more than 7 months with his late application, that 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 (“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 24 August 2023 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 17 June 2021, and hence he was more than 2 years 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 2 years must be considered as extremely substantial and inordinate, for which he explained at the hearing of his summons that he was at that time being detained or remanded by the police over some criminal offence, and that after he was granted bail, he had somehow lost all his court documents including the decision, and hence was unable to file his intended appeal until recently when he was informed and advised by his immigration officer to come to court to seek extension of time to appeal.

5.  The court record shows that the decision was sent on the same day of 3 June 2021 to the Applicant’s then reported address without being returned through undelivered post, and if he had indeed subsequently lost his court documents after being detained or remanded by police as alleged, of which he did not provide any documentary or corroborating evidence, he could still have easily requested the Court for another copy of the decision after being released on bail instead of waiting for more than 2 years to do so. As such, and in the absence of any further or relevant details or documentary evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good 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, and at the hearing of his summons he could only repeat his claim that his life is still at risk in his home country. 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 either.

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.