TARIQ MEHMOOD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1282/2018

[2023] HKCFI 259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1282 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 extend time to the seriously late application of the applicant for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal/petition regarding his non-refoulement claim upon finding that there was no good reason for his serious delay of more than 10 months with his application, that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his 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 November 2022 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 the High Court, Cap 4A expired on 14 May 2021, and hence he was more than 1 ½ years 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case, a delay of more than 1 ½ years must be considered as extremely substantial and inordinate, for which he first explained in his supporting affirmation that he only received the decision on 31 May 2021 when by then he was already out of time, and at the hearing of his summons he further clarified that he has been in prison at Tai Tam Gap Correctional Institution since 2020 for various criminal offences, and after receiving the decision, he did not know how to appeal and had had to seek legal assistance from inside the prison which caused further delay.

5.  The court record shows that the decision was sent on the same day to the applicant’s then reported address without being returned through undelivered post, and while it is accepted that there would be the inevitable delays in receiving mails or accessing legal assistance while in detention or in prison, but I am unable to see any justification in the applicant’s case for such a serious delay of more than 1 ½ years with his intended appeal.

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, and at the hearing of his summons he could only repeat his claim as before that he still has enemies in his home country that it is not safe for him to 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, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.