Re Islam Mohammad Amirul

HCAL 833/2017

[2018] HKCFI 2379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 833 OF 2017

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D E C I S I O N

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1.On 31 August 2018 I refused to extend time for the applicant’s late filing of his application for leave to apply for judicial review of both the decisions of the Director and the Board for rejecting his non-refoulement claim after having found no explanation from the applicant for his delay nor any merits in his intended challenge, and in the absence of any good reason to extend time I accordingly dismissed his application.

2.The applicant now by a summons issued on 18 September 2018 applies for leave to appeal against my decision out of time, as Order 59, rule 2B(1) of the Rules of the High Court, Cap 4A stipulates that an application for leave to appeal against an interlocutory judgment or order of the Court may only be made to the Court in the first instance within 14 days from the date of the judgment or order.

3.As the order being appealed against was made on 31 August 2019, the time to apply for leave to appeal expired on 14 September 2018, and the applicant is therefore out of time by 4 days, for which he did not provide any explanation, and while 4 days would not usually be considered as excessive, the fact is that the phrase of “may only be made” in Order 59, rule 2B(1) is unequivocal, indicating that the application to this court in the first instance may only be made within the stipulated 14-day period, and as the power to extend time under Order 3, rules 5(1) or (2) of the Ordinance should not apply to such an application, and in the absence of express provision giving the court in the first instance power to grant extension of time to apply for leave to appeal, it must necessarily follow that I do not have such power to do so in the present case: see Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515; and Menno Leendert Vas v Global Fair Industrial Ltd & Ors (unreported) HCA 4200/1995, 23 April 2010, para 6.          

4.In the premises and with no power to extend time, I accordingly dismiss the applicant’s summons.

The applicant acted in person