Re Abbas Qammar

HCAL 234/2017

[2020] HKCFI 2252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 234 OF 2017   

_________________

_________________

_________________

D E C I S I O N

_________________

1.On 1 February 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in refusing/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 the process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 7 May 2020 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 15 February 2019, and hence he was late by more than 14 months with his intended appeal. 

3.In considering whether to extend time for appealing against a decision refusing leave to apply 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 14 months must be considered as very substantial and excessive, for which he stated in his supporting affirmation as follows:

“ I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. The decision has heavily relied on the Country of Origin provided by the ImmD. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be dismissed for want of prosecution as I was in custody of Correctional Services Department. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

5.Whilst it is true that at the time of his present summons the Applicant was being detained by the Immigration Department at Castle Peak Bay Immigration Centre (“CIC”), there is no evidence from him that he was then already at CIC in February 2019 when the decision was sent to his last reported address in Sham Shui Po and has never been returned through undelivered mail, nor did he explain how he later came to learn about the decision if indeed he never received in the mail which prompted him to proceed to make his present application.  In the circumstances I am not persuaded that he has any good or valid reason for his such serious delay.   

6.More importantly, nor did he in his summon or supporting affirmation provide any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable other than some broad and vague assertion as noted above regarding Country of Origin Information which is irrelevant, while his complaint of not being provided with a hearing for him to clarify the situation in his country is not a proper ground of appeal as the court does not hear evidence in leave application for judicial review, never mind the fact that he had never requested any oral hearing for his application. 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.

7.In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

The applicant appeared in person