Re Mohammed Jawed

HCAL 196/2017

[2019] HKCFI 2905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 196 OF 2017

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  8 November 2019

Date of Decision:  17 December 2019

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D E C I S I O N

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1.On 30 January 2018 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 his process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 23 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 13 February 2018, and hence he was late by more than 17 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 17 months must be considered as extremely substantial and excessive, for which he explained at the hearing of his summons that he was then in prison for the offence of fighting in the public, and upon his discharge from prison he was then detained by the Immigration Department, and that it was then that he was told of the decision when by then he was way out of time with his intended appeal.

5.The Applicant did not produce any documentary evidence in support of his claim, but even accepting that he had indeed been in prison and/or detention, and to take into account the inevitable inconvenience as a result for him to access to legal assistance, none of these can in my view be accepted as a valid or good reason for his such serious delay or procedural breach.

6.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, and in his supporting affirmation he merely repeated his claimed reason for his delay, and complained of not being allowed the opportunity to clarify his situation in his home country, as he stated the following:

“ I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my situation in my country. The decision has heavily relied on the Country of Origin provided by the ImmD. Moreover, it’s not sufficient that was a litigant in person & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be dismissed for want of prosecution as I was in custody of Correctional Services Department. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

7.Whilst it is true that his leave application for judicial review was dealt with in his absence and on papers, it was because he never requested for any oral hearing for his application, and that at the hearing of his summons, he did not provide any further clarification of his situation in his home country which he complained of not being allowed the opportunity to do so before. As such 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. 

8.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