Re Hussain Muhammad Asif

HCAL 720/2017

[2018] HKCFI 2426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 720 OF 2017

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 25 October 2018

Date of Decision: 20 November 2018

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D E C I S I O N

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1.On 29 May 2018 Deputy High Court Judge Lam refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration and the Torture Claims Appeal Board in rejecting/dismissing his non-refoulement claim upon finding none of the grounds put forward by him as reasonably arguable or with any prospect of success in his intended application.

2.The applicant now by a summons issued on 2 October 2018 seeks leave to appeal against that decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 12 June 2018, and hence he was late by three and a half months 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 will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

4.In the applicant’s case a delay of more than three and a half months must be regarded as substantial.  In his supporting affirmation of the same date he explained that he did not receive the decision from the Court until 2 October 2018 when he printed it out from the internet, and at the hearing of his summons before me he further clarified that he only learnt about the Court’s decision on 22 September 2018 when he attended at the Immigration Department to report on his recognizance, but as he all along resided at the same address at all material time to which the decision was posted by the Court on the same date, he was unable to explain why he never received it at his address.  In the circumstances I am not convinced that he has provided any acceptable reason for his delay.

5.More significantly, he did not provide any draft or proposed ground for his appeal, or any particulars as to any error in the decision or why it was unreasonable or unfair, without which I am unable to see any prospect of success in his intended appeal.

6.In the premises it would be futile to extend time for what appears to me a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.

The applicant appeared in person