Case Document

100%Judiciary

HCAL 163/2018

[2019] HKCFI 2725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 163 OF 2018

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RE :

AHMED INTIZAR

Applicant

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Before:

Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:	16 October 2019
Date of Decision:	25 November 2019

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DECISION

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1.On 26 July 2019 I struck out and dismissed the Applicant’s application 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 his second such application after he failed to obtain leave from the court under HCAL 163/2017 of which he never brought any appeal, that the principle of res judicata applied, and that it was an abuse of process for him to try to re-litigate his case against the same decision of the Board which resulted in much judicial and public resources being wasted.

2.The Applicant now by a summons issued on to 11 September 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 September 2019 after discounting the month of August 2019 being the Summer Vacation, and hence he was late by two 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 two days cannot by any means be regarded as significant, for which he explained at the hearing that he was then being detained at the Castle Peak Bay Immigration Centre and was not released until September 2019, and it was only then that he was able to seek legal assistance to lodge his appeal. As such I propose to focus on the merit or prospect of his intended appeal.

5.However, he did not 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,other than just claiming that the decision was unfair without allowing him an opportunity to clarify his case or his situation in his country. As he never requested for any oral hearing for his leave application, and given the finding that his second such application was an abuse of process, and in the absence of any error 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 his application for leave to appeal out of time, and dismiss his summons.