JOBAN MASIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1955/2024

[2025] HKCFI 2131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1955 OF 2024

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BETWEEN

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D E C I S I O N

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1.  On 9 January 2025 I refused to grant leave to 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 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 17 March 2025 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 23 January 2025, and hence he was more than 7 weeks 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 7 weeks must be considered as substantial and inordinate, for which he stated in his supporting affirmation as follows:

“The decision made by Deputy High Court Judge Bruno Chan was reached unfairly, as I was not given an opportunity to clarify my case and situation in my country. It is insufficient to consider that I was a litigant in person, illiterate, unrepresented, uneducated, and unfamiliar with court rules, especially as I am new to Hong Kong and unaware of the time limits.

Moreover, I did not receive any correspondence from the Court regarding my hearing date or the dismissal of my Judicial Review, and I disagree with the court’s decision. I wish to inform you that I fear for my life if I am forced to return to my country. I humbly request that the court allow my appeal out of time and grant me the opportunity to explain my situation.”

5.  The court record shows that the decision was sent on the same day of 9 January 2025 to the Applicant’s last reported address without being returned through undelivered post, and if the Applicant never did receive the decision in the mail as alleged, then he failed to explain as to how he found out about the decision which he now intends to appeal, as he also failed to attend the hearing of his summons without any explanation, and in the absence of any reliable evidence to corroborate his bare assertions, 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 in his affirmation in which as noted above that he just made bare assertions that the decision was not fair as he was not given any opportunity to clarify his case or the situation in his country when in fact that he failed to attend the scheduled hearing of his leave application without any explanation, nor did he as noted above attend the hearing of his present application again without any 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, 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.