Ahmed Mushtaq v. Torture Claims Appeal Board and Another

HCAL 100/2017

[2020] HKCFI 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 100 OF 2017

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J U D G M E N T

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1.On 16 October 2018, this Court handed down a judgment by way of CALL-1 Form (“the judgment”), dismissing the Applicant’s application for leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) which rejected his non-refoulement claim.

2.The facts and the issues in the application, as well as the reasons of the Court in refusing to give leave to the Applicant are set out in the judgement and the Court is not going to repeat them here. 

3.According to Order 53 rule 3(4) of the Rules of High Court the Applicant has 14 days to appeal against the decision of the Court which time expired on 30 October 2019.  By a summons dated 29 November 2019 the Applicant applied for leave to lodge an appeal out of time. 

4.It has been held in a number of authorities, such as Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134 and Wong YukManv Ng Leung Sing & Anor [2016] HKCU 157, that in considering whether to extend the time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to:

(1)     the length of the delay;

(2)     the reasons for the delay;

(3)     the prospect of the intended appeal; and

(4)     the prejudice to the putative respondent if extension of time was granted. 

5.In this case the Applicant is late by about a month.  He explains in his affirmation that as he had no money to obtain legal advice regarding the procedure of appeal he was under the wrong impression that there was no further remedy once the 14-day limit had expired.  He considers that there are merits in his appeal, thus justifying the court to exercise its discretion to allow him to appeal out of time. 

6.The Applicant gives no explanation in the affirmation why he had not lodged the appeal within the time limit.  He also fails to do so during the hearing.  It seems what he means is that as he did not have the financial means to seek legal advice he did not know he had to lodge the appeal within 14 days of the judgment.  This is certainly not an acceptable excuse for the delay.  He was able to follow the correct procedure to take the decisions of the Director and the Board to the Court of First Instance for judicial review.  He was also able to find out the correct procedure to make the present application for leave to appeal out of time, issuing the proper summons and filing the necessary affirmation.  It must follow that if he had prosecuted his application with reasonable diligence he should have no difficulty finding out the correct procedure of appeal and would be able to file his notice of appeal within the time limit. 

7.As pointed out above, one of the factors to consider in an application for an extension of time is the prospects of an applicant’s intended appeal against the decision of the court.  According to a number of authorities, including Re MK HCMP 2609/2016, Islam Raja Rais v Director of Immigration HCMP 881/2017, and Re Gurung Min Bahadur [2018] HKCA 226, such factor is a crucial one.  It is also trite law that the Applicant has the burden to satisfy the court that his intended appeal has good prospects of success. 

8.The Applicant has not provided any ground of appeal in his affirmation apart from saying that there are merits in his appeal.  During the hearing, the Applicant supplements what he says in the affirmation by saying that he had talked to lawyers in Pakistan and friends in Hong Kong and they had all told him that he had good grounds for appeal.  Again no particulars are given. 

9.The Court, as pointed out above, is of the view that the reason for the delay of the Applicant in filing the notice of appeal is unsustainable and, more importantly, his intended appeal has no prospects of success.  It serves no meaningful purpose to extend the time for appeal.  The application for leave to appeal out of time is refused and the Applicant’s summons is dismissed. 

Applicant appeared in person

Putative Respondent 1 and Putative Respondent 2 absent and not represented