Re Hossain Belayet

HCAL 738/2018

[2020] HKCFI 50

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 738 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 29 November 2019

Date of Decision: 6 January 2020

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DECISION

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1.On 23 September 2019 Deputy High Court Josiah Lam 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 his process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 15 October 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 7 October 2019, 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 cannot be said to be significant, for which he explained at the hearing of his summons that he was admitted into Kwong Wah Hospital on 3 October 2019 due to his diabetic complications and was not discharged until 8 October 2019 when by then he was out of time.  As his explanation was verified by a medical report from Kwong Wah Hospital produced by him at the hearing, I accept that he has provided a valid explanation for his delay.  

5.However, he did not either 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 at the hearing when he was invited to do so, he was unable to point to any error in the decision, and merely repeated his claim that his life would still be in danger in his home country.  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. 

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