Re Nahid Mohammad

HCAL 1006/2017

[2019] HKCFI 2733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1006 OF 2017

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DECISION

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1.On 28 June 2019 I dismissed the Applicant’s Form 86 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 failing to obtain leave in his earlier proceedings under HCAL 142/2017, 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 application was found 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 8 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 12 June 2019, and hence he was 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 regarded as insignificant, for which he claimed to have never received the decision in the mail and was only told of it by the Immigration Department when he reported on his recognizance.  The record shows that the decision was sent on the same date to his last reported address and has never been returned through undelivered post.  In the absence of any further particulars or supporting documentary evidence from the Applicant, I am not satisfied that he has provided any good or valid explanation for his delay.

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 his claim to have good grounds to appeal in his supporting affirmation, and when he was invited at the hearing to elaborate on his such claim, he merely stated that it was wrong for the Director of Immigration to reject his non-refoulement claim without making sufficient enquiry as to the real situation in his home country, of which was clearly already found by the Court in his previous application as not reasonably arguable.  As such and in the absence of any error in the decision being 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.

The applicant appeared in person