Re Zaheer

HCAL 1602/2018

[2020] HKCFI 1171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1602 OF 2018

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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 1 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, the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.  He was absent on the day of hearing without any explanation and his application was dismissed for want of prosecution.  He took out an application for setting aside of the court’s ex parte order.  The Court fixed a hearing for him.  He had appeared before this Court.  By Order dated 3 May 2019 (“the Court’s decision”), I accepted his explanation and set aside the ex parte order, which dismissed his application for want of prosecution.  I proceeded to consider his application.  On 25 October 2019, 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) of the Rules of the High Court.  The deadline for him to appeal is 8 November 2019.  He filed a summons on 28 November 2019 for time extension for his appeal and for leave to advance new ground of appeal.

4.A hearing was fixed for him to attend court for his application on 22 January 2020 and he appeared before the Court.

The applicant’s affirmation

5.The applicant filed an affirmation in support of his application.  In his affirmation he set out the reasons below:

(1)     my decision was reached without allowing him an opportunity to clarify his situation of his country;

(2)     my decision relied heavily on the origin of information provided by the Director of Immigration;

(3)     he is a litigant in person and he did not know that he was only allowed 14 days to appeal; and

(4)     he was being detained by the Immigration authority and he was not aware that his application was dismissed for want of prosecution.

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.Grounds (1) and (2) are his opinions without any evidence in support of them.  Ground (3) does not amount to an excuse for his intended appeal out of time.  Ground (4) is a mistake as the issue of dismissal of his application was dealt with and the ex parte order was set aside.  The court’s order dealt with the merits of his application.

8.When the applicant appeared before me, he said that he did not received the court’s decision.  Therefore, he was not aware of the reasons for dismissing his application.

9.I therefore explained the reasons as set out in the court’s decision to him.  He confirmed that he understood the reasons.

10.I specifically asked him the reasons for him to say that my decision was wrong.  He said that he still had problems in Bangladesh and his child would be affected.  Also, there is no reason in his affirmation that he was unable to advance his ground of appeal to the Board.

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

The Applicant appeared in person.