MOHSIN KHAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1466/2018

[2024] HKCFI 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1466 OF 2018

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BETWEEN

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D E C I S I O N

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1.  On 30 April 2021 I refused to grant leave to the Applicant to apply for judicial review of the 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 7 March 2024 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 13 May 2021, and hence he was more than 2 years 9 months 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 2 years and 9 months must be considered as extremely substantial and inordinate, for which he explained in his affirmation that he did not receive the decision in the mail but without other details, and at the subsequent hearing of his summons he changed his explanation that at that time in about 2021 he had intended to return to his home country but the Immigration Department was unable to make the arrangement due to the on-going Covid-19 pandemic, but later when he heard that he still has the same danger in his home country as his enemies are still looking for him and have even murdered his brother, he therefore changed his mind about returning to Pakistan and instead proceeded with his intended appeal, but by then he was already out of time to do so.

5.  The court record shows that the decision was sent on the same day of 30 April 2021 to the Applicant’s last reported address without being returned through undelivered post, while a change of mind about one’s own legal proceedings can never be accepted as an excuse for failing to prosecute it with due diligence within the procedural requirements. As such I am not satisfied that the Applicant has any valid reason to justify 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 he just asserted that the decision was unfair and that he was not afforded an adequate opportunity to clarify his case but without providing any further necessary or relevant details or particulars or elaboration as to how it was so, nor was he able to do so at the hearing of his summons other than just repeating his claim as before. 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.