Re Sheik Razaul

HCAL 162/2018

[2019] HKCFI 2497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 162 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 23 August 2019

Date of Decision: 4 November 2019

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DECISION

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1.On 25 June 2019 Deputy High Court Judge Josiah Lam dismissed the Applicant’s second application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding that it was an abuse of process on his part to re-litigate the matter by bringing a second such application based on similar grounds after failing to obtain leave from the Court in his previous application.

2.The Applicant now by a summons issued on 15 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 9 July 2019, and hence he was late by six 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 six days may not be regarded as significant or substantial, for which he explained at the hearing of his summons that he had all along been detained at the Castle Peak Bay Immigration Centre (“CIC”) and was only released on 30 July 2019.  Given the relatively insignificant delay, I proposed to focus on the merit, if any, of his intended appeal.   

5.He did not however provide either in his summons or affirmation any draft or proposed grounds of appeal, or any particulars of any error in the decision, and at the hearing he requested to be given until the following Monday 26 August 2019 to submit his grounds of appeal, yet up to now he has failed to do so.  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. 

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

The applicant appeared in person