Re Zeb Hassan

HCAL 583/2017

[2019] HKCFI 2729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 583 OF 2017

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DECISION

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1.On 13 February 2019 I refused to grant leave to the Applicant 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 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 Director/Board or its decision, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 20 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 February 2019, and hence he was late by more than five months 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 more than five months must be regarded as very substantial or excessive, for which he explained at the hearing that he never received the Court’s decision until sometime in August 2019 when he was advised to make enquiry with the Court that he was told about the decision, and hence by then he was way out of time to appeal.

5.He however also conceded that he was at all material time residing at the same reported address provided to the Court to which the decision was sent but which has not been returned through undelivered mail,and of which he agreed to have no explanation why he had never received it. In the absence of any further particulars or documentary evidence in support of his claim, I am not satisfied that the Applicant has provided any good or valid reason for his serious delay.    

6.More importantly, nor did he in his summons or affirmation provide any valid ground 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 a complaint in his supporting affirmation that the decision was made without his appearance, of which as pointed out in my decision that he had never requested for any,I therefore proceeded to deal with his application on papers in his absence: [11].  As such I do not find it reasonably arguable for his intended appeal, 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. 

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 appeared in person