Re Mia Mohammad Milon

HCAL 593/2017

[2019] HKCFI 1583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 593 OF 2017

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D E C I S I O N

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1.On 22 March 2019 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration or the Torture Claims Appeal Board in rejecting/dismissing his non-refoulement claim and subsequently appeal respectively upon finding that he had failed to put forward any grounds to challenge either of them, and that there was no error of law or procedural unfairness in their decisions or any prospect of success in his intended application.

2.The applicant now by a summons issued on 29 April 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 5 April 2019, and hence he was late by more than three weeks 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 putative respondent if extension of time was granted: see Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; and Wong Yuk Manv Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016).

4.In the applicant’s case a delay of more than three weeks cannot be said to be insignificant, for which he explained in his supporting affirmation that he never received the decision from the court until he was informed by the Immigration Department much later when he reported on his recognizance.  A search of the court file revealed that the decision sent on the same date to his last reported address was in fact returned undelivered by the Post Office on 25 April 2019, and as a result the Applicant was contacted by the Registry to collect the decision in person, which he did on the same day of 25 April 2019.

5.Upon receipt of the decision the Applicant instead of filing his notice of appeal within 14 days of 25 April 2019 when he would have been within time, he issued the summons on 29 April 2019 now before me which was wholly unnecessary, and by the time he appeared before me on 24 May 2019 for the hearing of his summons, he was therefore out of time with his intended appeal, and of which I am therefore required to proceed to consider the merits or prospect of his intended appeal.

6.He did not however provide either in his summons or his supporting affirmation any draft or proposed ground for his appeal, nor was he able to do so at the hearing of his summons at the Court’s invitation, or even to put forward any particulars as to any error in the decision or why it may be said to be unreasonable or unfair, and in the absence of any reasonably arguable ground to challenge the decision, I am unable to see any prospect of success in his intended appeal.

7.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