Re Bepari Aowal

HCAL 216/2017

[2019] HKCFI 824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 216 OF 2017

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D E C I S I O N

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1.On 28 July 2017 Deputy High Court Judge Woodcock refused to grant leave to the applicant to apply for judicial review of the decision of both the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the 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 22 November 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 11 September 2017 after discounting the Court’s vacation in August, and hence he was late by more than 14 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 14 months must be regarded as very substantial, for which he explained in his supporting affirmation of the same date that he was at the material time in prison for breaching his condition of stay and was later detained at the Immigration Department CIC Centre, and hence he was unable to file his appeal at time until he was recently informed by his friend of the Court’s decision.  However, he provided no particulars as to exactly when he was imprisoned or detained, nor did he produce any documentary evidence in support of such claim, plus the fact that after Judge Woodcock’s decision he filed another Form 86 on 7 November 2017 under HCAL 855/2017 for leave to review the Board’s decision, which application was subsequently refused by Campbell-Moffat J on 29 November 2018 on the basis that it had already been heard by Judge Woodcock and hence she had no locus to rehear it.  In that Form 86 the applicant reported his then address at Yuen Long, thus contradicting his claim of being in prison or detention at that time.  In any event he was still able to launch his second leave application even if he were indeed in prison.  As such I do not accept that he has provided any good reason for such substantial delay.

5.Nor did he 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. In the absence of 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