Re Ali Saqib

HCAL 244/2017

[2019] HKCFI 3007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 244 OF 2017

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  25 October 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 8 June 2018 I refused to grant leave to the Applicant to apply for judicial review of the decision 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 that he had failed to put forward any reasonably arguable ground 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 decision, 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 22 June 2018, and hence he was late by more than 13 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 13 months must be considered as very substantial and excessive, for which he did not provide any explanation either in his summons or his supporting affirmation, nor did he appear at the hearing of his summons with any explanation.  In the circumstances I do not find that he has provided any good reason or explanation for his such serious 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, and as he failed to attend the hearing of his summons without any explanation, 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.

The applicant was not represented and did not appear