ASGHAR ADNAN

HCAL 972/2017

[2018] HKCFI 2392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 972 OF 2017

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D E C I S I O N

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1.  On 24 August 2018 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and of the Torture Claims Appeal Board (“the Board”) in rejecting his non-refoulement claim upon finding none of his proposed grounds reasonably arguable and that there is no prospect of success in his intended challenge.

2.  The applicant now by a summons issued on 10 September 2018 applies for leave to appeal against my decision out of time, as the 14-day period for him to appeal against the decision stipulated by Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, ended on 7 September 2018 and hence the applicant was late by 3 days, for which he explained that he did not receive the decision on time and that when he did eventually receive it he was already outside of the 14-day period.

3.  Whilst he did not make it clear as to exactly when and how he eventually received the decision, in particularly when he did confirm at the hearing that he was at the material time residing at the same address to which the decision was posted, but given the delay of 3 days cannot be said to be excessive, I am prepared to accept his explanation.

4.  I now turn to assess the prospects of his intended appeal against the decision, which is a crucial consideration in an application to extend time: see Islam Raja Rais v Director of Immigration (unreported) HCMP 881/2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Akbar Md Faishal [2018] HKCA 566.

5.  In his supporting affirmation of the same date the applicant repeated his claim of having faced all sorts of dangerous problems and harassment and torture in Pakistan that he had to flee abroad to save his life, and that he believes that the Director and the Board had reached the wrong decision in assessing his USM claim by rejecting his claim without any proper inquiry or careful understanding of his situation, and suggested that the Immigration officer and the adjudicator to take a tour of his home countryto inquire about the real danger that he would face if he were to return there, none of which however bear any relevance to the reasons given in my decision to refuse leave for him to apply for judicial review and against which he now seeks to appeal.      

6.  Furthermore, in paragraph 5 of his affirmation the applicant stated:

“ 3. … I have since taken legal advice and, I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for the leave for judicial Review. Obviously, this was my own oversight brought on by the fact that I was acting in person at this stage of proceedings. Additionally, I was informed that the Directorand the Adjudicator did not see the grounds to reverse their decision. I would prefer to submit the order from the High Court along with the affirmation and Summons as Exhibit ‘A’.

4. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal put of me.

5. Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse my Appeal/petition.”

7.  It is indeed not easy to see what the applicant was trying to say, but the truth is that there is simply no further ground put forward by him in those paragraphs or in the affirmation, a fact which he did concede at his oral hearing when he was asked for clarification, and that Exhibit “A” is nothing more than just a copy of my decision and order refusing him leave.

8.  In the premises and as I am unable to see any reasonably arguable grounds advanced by the applicant or any prospect of success in his intended appeal, it would be futile to extend the time for appealing.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.

The applicant appeared in person