Re Haider Ali

HCAL 138/2017

[2019] HKCFI 1562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 138 OF 2017

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Before: Deputy High Court Judge K. W. Lung in Chambers

Date of Hearing: 15 March 2019

Date of Decision: 19 June 2019

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D E C I S I O N

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The Application

1.The applicant is an illegal immigrant and he lodged a non‑refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board/Non‑refoulement claims Petition Office (“the Board”). Having considered his evidence, the Board, by its Decision dated 6 February 2017 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decisions.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form 86 to apply for leave for judicial review of the Board’s Decision. He had appeared before Deputy Judge Woodcock, who by Order dated 10 November 2017, refused to grant him leave to apply for judicial review of the Board’s Decision. The Deputy Judge had given the reasons for rejecting his application in Form Call‑1 dated 10 November 2017.

3.The applicant intends to appeal to the Court of Appeal against the Deputy Judge’s decision. However, he is out of time under Order 53, rule 3(4) of the RHC. The deadline for him to appeal should be 14 days from 10 November 2017. He took out a summons for time extension for his appeal on 15 November 2018. He is therefore late for a year.

The applicant’s affirmation

4.The applicant filed an affirmation in support of his application. In his affirmation he put down:

“Because before I don’t know can second applied, just I listen my friend say can second applied. So I came to do that …”

5.In the applicant’s affirmation, the applicant had not stated in what respect Judge Woodcock had made any mistake or committed any error in making her decision refusing leave to him to apply for judicial review.

Discussion

6.In Re: Rana Jaswant [2019] HKCA 102, CAMP 160/2018, 6 March 2019, the Court of Appeal held that this Court has the jurisdiction to deal with this application under Order 59, rule 15 of RHC. See paragraph 8.1.

7.In the above judgment, the Court of Appeal also held that to consider whether time extension should be granted, the court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted [8.6].

8.As said before, the applicant is 12 months late. There is no good reason for his delay. Nor did he set out any ground in support of his appeal against the Deputy Judge’s decision. I consider that he had no reasonable prospect of success of the intended appeal.

9.In the circumstances, I refuse to grant the applicant extension of time to appeal against the Court’s decision to the Court of Appeal. Accordingly, I dismiss his application.

The applicant appeared in person