RE MUSHTAQ AHMAD

HCAL 649/2018

[2021] HKCFI 377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 649 OF 2018

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D E C I S I O N

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1.  On 31 August 2020 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding 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 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 23 September 2020 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 expired on 14 September 2020, and hence he was late by 9 days 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 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.

4.  In the applicant’s case, a delay of 9 days may not be considered as substantial, for which he explained at the hearing of his summons that he was not aware of the 14-day requirement under the rule to file his appeal, and as he was unrepresented and by the time he was able to find help to prepare the necessary documents to appeal, he was already out of time.

5.  While ignorance of the rules can never be accepted as any valid reason or excuse for their non-compliance, I am prepared to accept that the applicant’s slight delay in his circumstances is insignificant, and propose to focus on the merits or prospects of his intended appeal.

6.  However, he did not put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or his affirmation, and at the hearing of his summons he merely repeated his claim that he cannot go back to his home country as his life would still be in danger there.  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, 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.