RE AKHTAR MUHAMMAD JAVED

HCAL 265/2017

[2021] HKCFI 1326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 265 OF 2017

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D E C I S I O N

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1.  On 8 February 2018 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“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 22 December 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 22 February 2018, and hence he was late by 2 years and 10 months 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 2 years and 10 months must be considered as extremely inordinate and excessive, for which stated in his supporting affirmation as follows:

“ I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the Deputy High Court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be refused. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

5.  The applicant however did not appear at the hearing of his summons to explain what he alleged to not have been given the opportunity to clarify his case or the situation in his country, never mind the fact that he never requested any oral hearing for his leave application for judicial review. In any event, ignorance of the rules can never be accepted as an excuse for their non-compliances, not to mention for such a serious breach, and as 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 in the absence of any further details or documentary evidence to corroborate his bare assertions, I am not satisfied that the applicant has provided any good reason for his such serious delay.

6.  More importantly, nor did he 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 affirmation, and that as noted above he 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 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.