Re Akter Shahana

HCAL 161/2018

[2019] HKCFI 1682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 161 OF 2018

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D E C I S I O N

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1.On 2 April 2019 Deputy High Court Judge Josiah Lam 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 reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Board or its decision, and that there was no reasonable prospect of success in his intended application.

2.The applicant now by a summons dated 3 June 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 16 April 2019, and hence he was late by almost seven weeks with his intended appeal. 

3.In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the applicant’s case, a delay of almost seven weeks cannot be considered as insignificant, for which he explained that he did not receivethe decision in the mail until 31 May 2019 when he was given his mail by his landlord and that by then he was already out of time, and that he had to seek assistance form his friend to help him to prepare his application to appeal.  As the court record shows that the decision was sent to the applicant on the same day of 2 April 2019, in the absence of any independent evidence that he only received it on 31 May 2019 or any valid explanation as to why his landlord only gave the decision to him almost two months later, I am not satisfied that he has provided any good reason for his delay. 

5.More importantly, he did not in his summons or supporting affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may be argued that the decision was unfair or unreasonable, other than just a regurgitation of his claim that his problems still remained unresolved in his home country and that his life would still be in danger upon refoulement to Bangladesh.  As such and in the absence of any errors in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal. 

6.In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse to grant his application for leave to appeal out of time, and dismiss his summons.

The applicant appeared in person