RE RHAMAN ATIKUR

CAMP 240/2020,[2026] HKCA 1193

On appeal from [2020] HKCFI 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 240 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 1497/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 8 June 2020[1] (“the Leave Decision”) refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 26 July 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration dated 28 July 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out by the Judge in the Leave Decision at [9]-[10], which will not be repeated.

3.  After considering the documents filed by the applicant as well as the oral submissions made by him at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [12]-[19] of the Leave Decision.  

4.  By a decision dated 19 November 2020[2], the Judge refused to extend time for the applicant to appeal against the Leave Decision.

Procedural history and the applicant’s repeated failures to comply with court orders

5.  By a Summons filed in this court on 15 December 2020, the applicant renewed his application for extension of time to appeal.  On 10 November 2021, this court (Barma and Au JJA) granted an extension of time for the applicant to appeal against the Leave Decision, and ordered inter alia that the applicant shall file a Notice of Appeal within 14 days of the order (“the First Order”), with the date of the hearing of the appeal to be fixed. 

6.  A copy of the First Order was sent by post to the applicant’s last known address on 12 November 2021, which was not returned undelivered.  The applicant however, failed to lodge his Notice of Appeal as directed.

7.  The applicant subsequently filed a Summons on 18 January 2022 with this court, being his second application for extension of time to appeal against the Leave Decision, claiming that he did not receive a copy of the First Order.  On 14 November 2022, this court (Barma JA) granted further indulgence to the applicant and directed that an extension of time of two weeks from 14 November 2022 be granted to the applicant to file a Notice of Appeal (“the Second Order”).

8.  The applicant again failed to lodge his Notice of Appeal as directed, which led to his present Summons filed on 24 October 2023 (“the Summons”), being his third application for extension of time to appeal and/or file his Notice of Appeal.

The present application for extension of time

9.  According to the court’s record, a copy of the Second Order was sent by post to the applicant at his last known address on 14 November 2022, which was not returned undelivered.  As noted above, he did not comply with the Second Order, and he now applies for yet more time to file his Notice of Appeal by the Summons. 

10.  In the Summons and his supporting affirmation, the applicant merely acknowledged that he failed to file the Notice of Appeal as directed by the Second Order, without proffering any reasons for such failure.  

11.  In his written submissions lodged on 7 November 2023, the applicant claimed that he did not receive “the Decision of the Court of First Instance…dated 30 June 2023” on time and that it was “fully” his “mistake” in failing to comply with the Second Order.  

12.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.  

Discussion

13.  Given the circumstances and the procedural history of this case, the present application may be disposed of briefly.

14.  Upon the applicant’s previous applications, this court has granted him an extension of time to appeal not once, but twice.  Letters enclosing the Court’s First and Second Orders were sent to the applicant’s last known address within the period which he was permitted to lodge his Notice of Appeal, which were not returned undelivered.  He must be taken to have had notice of the Court’s Orders within the relevant timeframe.  We do not accept the applicant’s claims that he did not receive the court’s letters, and thus he has proffered no reasonable explanation whatsoever for his non-compliance with the First and Second Orders.

15.  Given the most regrettable manner in which the applicant has prosecuted his intended appeal in light of the repeated indulgence afforded to him by this court, we are not prepared to further extend time for him to file a Notice of Appeal in the circumstances.

16.  The Summons filed on 24 October 2023 is accordingly dismissed.