Re Abbas Tasawar

HCAL 1597/2018

[2020] HKCFI 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1597 OF 2018

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Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Hearing: 6 September 2019

Date of Decision: 12 June 2020

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D E C I S I O N

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The application

1.The applicant is an illegal immigrant and he lodged a non‑refoulement claim with the Director of Immigration (“the Director”).  The Director rejected his application and he appealed to the Torture Claims Appeal Board/Non-Refoulement claims Petition Office (“the Board”).  Having considered his evidence, the Board, by its Decision dated 2 August 2018 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decisions.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.  He had appeared before this Court.  By Order dated 2 July 2019 (“the Court’s decision”), I refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.The applicant intends to appeal to the Court of Appeal against the Court’s decision.  However, he is out of time under Order 53, rule 3(4), RHC.  The deadline for him to appeal should be 16 July 2019.  He took out a summons dated 19 July 2019 for time extension for his appeal.  He is therefore three days’ late.

4.A hearing was fixed for him to attend court for his application on 6 September 2019.

The applicant’s affirmation

5.The applicant filed an affirmation in support of his application.  In his affirmation he said that there was misunderstanding on his part because of his hearing problem.  He was referring to my dismissal of his grounds (i) to (iii) as they were inconsistent with what he said in court.  These grounds referred to the hearing bundle being given to him shortly before the appeal without translation and he did not have enough time to prepare for it, thus causing confusion at the hearing.  He also said that I failed to make sufficient enquiry before finalizing my decision.

Discussion

6.The Court of Appeal in Re Adumekwe Rowland Ejike [2019] HKCA 702, 28 June 2019, held:

“19. The prospect of success of the intended appeal is important; the court will not grant extension of time for a hopeless appeal to be pursued.”

7.The delay is relatively short.  However, he confirmed that his lawyer had explained the Director’s Decision to him and that he had the interpreter to explain the hearing bundle to him.  He further confirmed that he was free to express himself before the Adjudicator of the Board.  He was unable to identify what enquiry I should have made in court as I have no power to make investigation into the facts myself.  This is only a general comment without any evidence or particular in support of it.

8.In the circumstances, I find that the applicant is unable to show that he has a reasonable prospect of success in his intended appeal against my decision.  Accordingly, I dismiss his application.

The Applicant appeared in person.