RE ASIF MUHAMMAD

HCAL 1274/2018

[2022] HKCFI 1650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1274 OF 2018

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D E C I S I O N

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1.  On 22 June 2021 I refused to grant leave to the Applicant 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 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 5 August 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 the High Court, Cap 4A ended on 6 July 2021, and hence he was more than 4 weeks late with his intended appeal.

3.  I should note that for the Applicant’s summons, the Court originally scheduled a hearing on 21 April 2022, but on the day before the hearing on 20 April 2022, the Registry received a letter from the Applicant requesting to postpone the hearing to a later date because he would not be able to attend the hearing due to his obligations as a Muslim for fasting during the entire month of April 2022.

4.  As a result the hearing was postponed to 25 May 2022 and the Applicant was informed accordingly. He again failed to appear in Court on that day, and on the following day on 26 May 2022, the Registry received another letter from the Applicant stating as follows:

“I am very sick so it is not possible for me to attend my hearing. Please consider my situation and give me another date. Attached Doctor Certificate,”

5.  The attached certificate was issued by a Dr Francis Leung from the Hong Kong Baptist Hospital dated 25 May 2022 certifying that the Applicant attended the clinic on that day as an out-patient for “Epigastric pain, low back pain”, and was prescribed some medicine for his consultation. The Applicant also attached a sick leave certificate issued by a Chinese medicine chiropractor on the same day giving him sick leave for that day due to alleged lower back pain.

6.  The Applicant is a 38-year old male from Pakistan who according to both decisions of the Director and the Board regarding his non-refoulement claim never disclosed any known medical or health issue in the past, but had never attended any screening interviews before the Director after missing 2 scheduled sessions in 2015 due to alleged medical reasons that the Director decided not to schedule any further screening interview for the process of his claim.

7.  The same occurred in the Applicant’s appeal to the Board when he again missed 2 scheduled oral hearings in 2018 before the Board alleging similar medical emergency on both occasions but which were also not accepted by the Board which refused to schedule a further hearing and proceeded to deal with his appeal in his absence and on paper.

8.  For his present application now before me, notwithstanding the medical certificates produced by him, I find it simply incredible and too much of a coincidence that the Applicant would again have the misfortune of coming down with what appears to me some relatively minor medical problem that he had to miss yet another hearing for what must plainly be one of momentous importance to him as his life and limb were said to be in jeopardy in his non-refoulement claim for protection that I do not see any justification to schedule yet a third hearing for his summons or to delay the matter any further, and shall therefore proceed to deal with his application for extension of time to appeal in the absence of the Applicant and on paper.

9.  In considering whether to extend time to appeal 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.

10.  In the Applicant’s case, a delay of more than 4 weeks must be considered as substantial or inordinate, for which he just stated in his affirmation that he did not receive the decision in the mail but without providing any further details or evidence in support of his statement.

11.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address, and in the absence of any further details or evidence to corroborate his bare assertion, I am not satisfied that the Applicant has provided any good reason for his serious delay.

12.  More importantly, the Applicant has 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, while as noted above he also twice failed to attend the hearing of his summons without acceptable reasons. 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.

13.  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.