Re Uddin Borhan

HCAL 984/2017

[2019] HKCFI 2202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 984 OF 2017

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DECISION

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1.On 7 December 2018 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal 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 in its decision, and that there was no reasonable prospect of success in his intended application.

2.The applicant now by a summons dated 9 July 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 21 December 2018, and hence he was late by more than 6 ½ months 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 M K 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 more than 6 ½ months must be considered as very substantial and excessive, for which he explained at the hearing of his summons that at that time he happened to just moved to another address of which he only informed the Immigration Department but not the judiciary, and hence he never received the decision until several months later when one of his former co-tenants handed him the decision sent to his former address.  Since he was well aware that the court’s decision on his leave application for judicial review was to be sent by the judiciary to him and not by the Immigration Department, and hence it was necessary for him to also inform the judiciary of his change of address but if he failed to do so promptly or at all, then he has only himself to blame.  As such I do not accept that he has provided any good reason for his delay.

5.More importantly, nor did he in his summons or 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, 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 his application for leave to appeal out of time, and dismiss his summons.

The applicant appeared in person