Re Fiasat

HCAL 1370/2018

[2020] HKCFI 2480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1370 OF 2018 

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 3 September 2020

Date of Decision: 7 October 2020

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D E C I S I O N

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1.On 17 July 2019 Deputy High Court Judge K W Lung 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 the process before the Director of Immigration (“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 by a summons issued on 8 August 2019 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 31 July 2019, and hence he was late by 8 days with his intended appeal.

3.However, the Applicant failed to appear at the scheduled hearing of his summons on 9 October 2019, and DHCJ K W Lung therefore dismissed his summons for want of prosecution.

4.On 28 October 2019 the Applicant issued another summons again for leave to appeal against DHCJ K W Lung’s earlier decision, explaining in his supporting affirmation that he did not receive the notice of hearing of his first summons and hence he was not aware of the scheduled hearing for his application.

5.Upon ascertaining that the Applicant might indeed not have received the notice of hearing after confirmation from the Immigration Department that he did change his address around the same period, DHCJ K W Lung directed on 1 November 2019 that the Applicant’s second summons be treated as an application to set aside the order of 9 October 2019 and for extension of time to appeal, and that it be fixed for hearing.

6.However, due to impact of the subsequent Covid-19 pandemic, the Applicant’s summons was not fixed for hearing until now before me, and at the hearing the Applicant confirmed that he did change his address late last year and had accordingly informed the Immigration Department, and hence he never received the notice of hearing of his first summons sent to his former address which explains why he did not attend its hearing on 9 October 2019. As such and as noted above the confirmation from the Immigration Department, I accept the Applicant’s explanation and set aside DHCJ K W Lung’s order of 9 October 2019.     

7.In proceeding to deal with Applicant’s summons for leave to appeal against DHCJ K W Lung’s 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.

8.In the Applicant’s case, a delay of 8 days for his intended appeal may not be considered as significant, for which he explained in his supporting affirmation that he received the decision late only on 4 August 2019 when by then he was already out of time. He however did not provide any documentary evidence such as the envelope which would show the date it was posted, and as the court record shows that the decision was sent on the same day of 17 July 2019 and has never been returned through undelivered post, I am not satisfied that the decision only reached the Applicant more than 2 weeks late as alleged, but as noted above, I accept that his delay of 8 days may not be considered as significant, and propose to focus on the prospect of his intended appeal. 

9.However, the Applicant did not in his summons or supporting affirmation or at the hearing provide any 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 a mere regurgitation of his claim that both the Director and the Board reached the wrong decision. As such and in the absence of any error in DHCJ K W Lung’s decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.     

10.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