Re Rahees Baver Khan

HCAL 381/2018

[2019] HKCFI 1333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 381 OF 2018

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D E C I S I O N

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1.On 28 February 2019 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) in respectively rejecting his non-refoulement claim and dismissing his subsequent appeal upon finding none of the grounds put forward by him as reasonably arguable or with any realistic prospect of success in his intended application.

2.The applicant now by a summons issued on 29 March 2019 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 14 March 2019, and hence he was late by about two weeks.

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 (i) the length of the delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

4.In the applicant’s case a delay of two weeks cannot be said to be insignificant, for which he explained in his supporting affirmation of the same date that the letter from the Court enclosing the decision was only sent to him on 15 March 2019, but the envelope of that letter which he claimed to have been exhibited to his affirmation as evidence was in fact not attached to his affirmation as he so claimed, and when he was asked at the hearing to produce it in court, he claimed that he had not brought it with him and asked for an adjournment, of which I refused as I did not accept how he could have failed to bring all his necessary documentary evidence to court for the hearing of his application, and in any event the court record showed that the decision was indeed sent to him at his reported address on 28 February 2019 instead of 15 March 2019 as he claimed.  In the circumstances I do not accept that he had provided any valid explanation or reason for his 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, and at the hearing he merely stated that the decision was wrong but without giving any further details or elaboration.  As such 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