Case Document

100%Judiciary

HCAL 439/2018

[2019] HKCFI 2384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 439 OF 2018

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RE :

SOHEL MOHAMMAD

Applicant

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 14 August 2019

Date of Decision: 14 October 2019

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DECISION

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1.On 17 June 2019 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 18 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 expired on 2 July 2019, and hence he was late by some 17 days 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 17 days cannot be considered as insignificant, for which he explained in his supporting affirmation that he did not receive the decision on time, and at the hearing of his summons he clarified that it was not until 17 July 2019 when he checked his mail box that he discovered the decision, as it was not his habit to check his mail box every day. As the court’s record reveals that the decision was sent to the Applicant on the same day of 17 June 2019, it was therefore entirely the Applicant’s own fault for not checking his mail box diligently. In the circumstances I do not accept that he has provided any good or valid 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 at the hearing he simply stated that he wants to appeal because he is not satisfied with the decision of the Director of Immigration in rejecting his non-refoulement claim, and that he needs to remain in Hong Kong until his problem back home is solved. As such and in the absence of any error being identified by the Applicant in the decision, 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 his application for leave to appeal out of time, and dismiss his summons.