Re Md Ali Asgher

HCAL 259/2018

[2019] HKCFI 2727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 259 OF 2018

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DECISION

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1.On 19 July 2019 I struck out and dismissed the Applicant’s 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 his second such application after he failed to obtain leave in his earlier proceedings under HCAL 214/2017, that it was an abuse of process by him to try to re-litigate his claim again after none of the grounds raised in his previous proceedings had already been found by the Court as reasonably arguable, and that there was no error of law or procedural unfairness in his process before the Board or in its decision, nor was there any prospect of success in his intended application.

2.The Applicant now by a summons issued on 9 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 2 September 2019 after taking into account of the Summer Vacation, and hence he was late by about seven 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 seven days may not be regarded as significant, for which he explained in his affirmation that he was unable to “get enough time to seek legal advice to get some knowledge about the court proceedings”, when in fact he did have the entire month of August during the Summer Vacation to do so.  As such and in the absence of any further particulars or supporting documentary evidence, I am not satisfied that he has provided a valid reason for his delay, albeit an insubstantial one. 

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, despite having claimed in his affirmation to have good grounds of appeal but of which he did not elaborate further as he again failed to attend the hearing of his summons, and while he did subsequently write a letter to the Court claiming that he never received the notice from the court and was therefore absent for the hearing of his summons, but as the record shows that the notice was sent on 12 September 2019 to the same address as stated in his said letter and which has never been returned by the Post Office as undelivered mail, and for the reasons already given, I decided not to waste any further time in re-scheduling another hearing for his summons.

6.For the reasons given, and in the absence of any error in the decision being clearly and properly identified by the Applicant, and given the fact as noted above that it was an abuse of process by him to try to re-litigate his unsuccessful claim, 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.

The applicant was not represented and did not appear