Re Khan Zainul Abedin

HCAL 810/2017

[2019] HKCFI 192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 810 OF 2017

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D E C I S I O N

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1.On 3 August 2018 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/petition regarding 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 19 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 17 August 2018, and hence he was late by slightly over two months.

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 two months must be regarded as substantial.  In his supporting affirmation of the same date heclaimed that he was never served with the order and hence was not aware of the said rule requiring the lodging of appeal within 14 days but provided no further clarification or particulars especially as to any change of his address at the material time, as the order and decision were sent to him on the same date to his last known address updated by him earlier on 31 May 2018.

5.At the hearing of his summons the applicant however clarified that as he has since July 2018 been detained by the Immigration Department, he was unable to lodge his notice of appeal within time.  The facts that the decision was sent to him well before his detention and that he was subsequently still able to issue his summons and affirmation under detentionclearly contradict his explanation, I do not accept that he has given any valid reason for his delay.

6.More significantly, he did not provide either in the summons or in his affirmation any draft or proposed ground for his appeal, or any particulars as to any legal error in the decision or why he thinks it was unfair or unreasonable, and at the hearing when he was invited to do so, he confirmed that he was unable to find any error in the decision but that he simply did not wish to leave Hong Kong. 

7.In the premises I am unable to see any prospect of success in his intended appeal, and hence it would be futile to extend time for what appears to me a hopeless appeal.  I therefore refuse his application for leave to appeal out of time, and dismiss his summons.

The applicant appeared in person