RE SHAHADAT MOLLAH

HCAL 1546/2018

[2021] HKCFI 542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1546 OF 2018

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D E C I S I O N

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1.  On 16 July 2020 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding 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 of Immigration 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 25 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 30 July 2020, and hence he was late by 8 weeks 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 8 weeks must be considered as substantial or significant, for which he explained at the hearing of his summons that someone in the building where he lives had earlier caught the coronavirus, and so he was afraid to leave his residence to avoid the risk of catching the virus himself until sometime in September 2020, but by then he was already out of time with his intended appeal.

5.  The applicant however did not provide any further details or particulars or documentary evidence in support of his assertion, and while it may seem entirely plausible with what he said about some resident within the premises of where he lives catching the virus and causing concerns to him, I find it difficult to believe that as a result he did not leave his home at all during the entire material period, nor do I accept that he could not have done so with the proper safeguard just to come to the court registry to file his notice of appeal within the 14-day period required under the rule. As such I am not satisfied that he has shown any good reason for his 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 at the hearing of his summons he merely repeated his claim that his problem back home still exists and hence he cannot yet return. 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.