Case Document

100%Judiciary

HCAL 616/2018

[2019] HKCFI 2428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 616 OF 2018

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RE :

MUHAMMAD IMRAN

Applicant

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 27 August 2019

Date of Decision: 14 October 2019

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DECISION

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1.On 13 June 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding no ground or reason had been put forward by him for his intended challenge, that there was no error of law or procedural unfairness in his process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons dated 8 August 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 27 June 2019, and hence he was late by five 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 five weeks cannot be said to be insignificant, for which he explained at the hearing that he never received the decision and that there was something wrong with his mail box, and that he only became aware of it later when he reported to the Immigration Department when by then he was out of time with his intended appeal.

5.The court record shows that the decision was in fact sent to the Applicant at his last reported address by post on the same day of the decision and had never been returned through undelivered post, and in the absence of any other reliable evidence from the Applicant that indeed the decision never reached him by mail, I am not satisfied that he has provided any valid or good explanation for his delay.

6.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 when he was invited to do so, he could only state that he was not satisfied with the decision and should be allowed to appeal. As such and in the absence of any error in the decision being clearly or properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

7.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.