Re Md Sahin Miah

HCAL 740/2018

[2019] HKCFI 2382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 740 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 20 August 2019

Date of Decision: 14 October 2019

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DECISION

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1.On 11 June 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”) 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 ended on 25 June 2019, and hence he would appear to have been late by about three 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 three weeks cannot be said to be insignificant, for which he explained at the hearing of his summons that he never received the decision from the mail, but subsequently received a telephone call from the court on 2 July 2019 asking him to come and collect the decision in person, and so he did on that same day but by then he was already outside the 14-day period from the day of the decision.

5.A review of the court record shows that although the decision was indeed posted to him on the day following the decision on 12 June 2019, it had subsequently been returned through undelivered post which therefore caused the court to contact the Applicant to collect the decision on 2 July 2019, hence the 14-day period should count as from 2 July 2019, and so when the Applicant eventually filed his application on 18 July 2019, he was in fact late by only two days which cannot, on any view, be regarded as serious or significant.

6.As for the merit of his intended appeal, the Applicant claimed in his affirmation that DHCJ Lam erred in the decision as follows:

(a)  that it failed to consider significance and level of unfairness the lack of language assistance had on him as a litigant which amounts to procedural unfairness;

(b)  that he was not given the necessary assistance in understanding the decision as he does not speak or write English;

(c)  that the lack of language assistance in enabling a claimant to understand his claim is discriminatory; and

(d)  that there was no reason or explanation why COI in support of his case were not accepted.  

7.These are however just broad and vague assertions of the Applicant without any particulars or specifics or elaboration as to how the they apply to the decision, that he was assisted by an interpreter throughout the hearing of his application without any problem or complaint, and the fact that the decision may not have been translated or interpreted to him afterwards cannot be accepted as a proper ground of appeal.  As such I do not find any of them reasonably arguable, 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. 

8.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.

The applicant appeared in person