Re Mane Hamirou

HCAL 294/2018

[2021] HKCFI 8

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 294 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 18 November 2020

Date of Decision: 7 January 2021

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D E C I S I O N

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1.On 11 January 2019 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 or irrationality 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 3 July 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 25 January 2019, and hence he was late by more than 17 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 17 months must be considered as extremely substantial and excessive, for which he at the hearing of his summons first explained that he was not aware of the rule requiring the filing of the notice of appeal within 14 days of the decision, and then he claimed to have never received the decision in the mail, but when he was asked when did he in fact become aware of the decision which he now seeks to appeal, he stated that it was when he received the notice of the hearing of his summons that he called the court and was told of the decision which is of course not possible as he must have already been aware of the decision before he issued his summons in July 2020.

5.As ignorance of the law can never be accepted as an excuse for procedural breaches, never mind such a serious one as in the Applicant’s case, and as the court record shows that the decision was sent on the same day of 11 January 2019 to the Applicant’s last reported address without being returned through undelivered post, I am not satisfied that the Applicant has provided any good or valid explanation for his serious delay.        

6.More importantly, nor did he put forward 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 either in his summons or affirmation, and at the hearing of his summons he merely repeated his claim that he cannot go back to his home country as his problem is still there. 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