RE MAZHAR BASHIR

HCAL 2230/2018

[2021] HKCFI 2645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2230 OF 2018

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D E C I S I O N

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1.  On 2 March 2021 Deputy High Court Judge C P Pang refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in refusing the late filing of his notice of appeal regarding 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 22 March 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 High Court, Cap 4A ended on 16 March 2021, and hence he was 6 days 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 The 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 6 days may not be regarded as substantial or significant, for which he explained in his supporting affirmation that he did not receive the decision in the mail as he had changed his address.

5.  The court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and if indeed he had changed his address at that time, it was his duty to inform the authorities as soon as practicable, and himself to blame if he had failed to do so. In any event in the absence of any further details as to how he came to learn about the decision if indeed he did not receive it in the mail, or any documentary evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good reason for his delay, but given the relatively insignificant delay, I propose to focus on the prospect of his intended appeal.

6.  However, the Applicant has not 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 affirmation, while he also failed to attend the hearing of his summons 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 fo 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.