Case Document

100%Judiciary

HCAL 344/2017

[2021] HKCFI 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 344 OF 2017

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RE:

MD ALAMGIR HOSSAIN

Applicant

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Decision: 27 April 2021

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D E C I S I O N

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1.On 4 December 2017 Deputy High Court Judge Woodcock refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“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 irrationality or procedural unfairness in his process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.The applicant did not then appeal against that decision to the Court of Appeal, but instead on 29 December 2017, while being detained at the Castle Peak Bay Immigration Centre (“CIC”), he filed a second Form 86 under HCAL 1166/2017 for leave to apply for judicial review of the same decision of the Board (“2^nd Application”).

3.On 26 March 2018 Judge Woodcock dismissed the 2^nd Application for the reasons given in her Reasons for Judgment dated 27 April 2018 that it was the applicant’s second such application after his first one had been refused without any appeal to the Court of Appeal, that the doctrine of res judicata applied to his second such application, and that it was an abuse of judicial process on his part to try to prolong his illegal stay in Hong Kong for economic reason, and for which the Learned Judge also made a Restricted Proceedings Order (“RPO”) against him thereby prohibiting him from commencing any fresh proceedings in the Court of first Instance concerning any matters involving or relating to or touching upon or leading to the proceedings in his first and second application without leave of the Court.

4.The applicant now by a summons issued on 3 March 2021 in these proceedings, i.e. his earlier leave application for judicial review by his first Form 86 issued under HCAL 344/2017 which was refused by Judge Woodcock on 4 December 2017, and in his summons he just stated as follows:

“The Plaintiff seeks leave against the Judgment of DHCJ Woodcock decision as it is Wednesbury unreasonable for taking into there is another ground for judicial review but not explaining further.”

5.The applicant has not filed any affirmation in support of his summons, but from these wordings it appears to me that he is seeking extension of time to appeal against that earlier decision of Judge Woodcock, as the 14-day period for him to do so under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 18 December 2017, and hence he was late by more than 3 years with his intended appeal.

6.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.

7.In the applicant’s case, a delay of more than 3 years must be considered as extremely substantial, for which he did not provide any explanation or information in his summons other than the fact that he is now being detained at the Castle Peak Bay Immigration Centre (“CIC”), of which by itself of course cannot be accepted as any excuse for procedural breaches, let alone such a blatantly serious one, and as such I do not see any good reason for his such serious delay.

8.As for the prospect of his intended appeal, the applicant has not provided any details or elaboration for his complaint stated in the summons that the decision is unreasonable, nor has he put forward any other proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable.

9.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, and as it seems very much to me another attempt of abuse of court process by him to prolong his stay in Hong Kong or to get out of his detention of the Immigration Department, as he was criticized by Judge Woodcock in her decision over his 2^nd Application, and to save time and resources from such further abuse, I decided not to fix any hearing for his summons, and dealt with it on paper accordingly.

10.In the premises, and for the reasons given, it would be futile to extend time for what appears to be a wholly hopeless appeal. I therefore refuse his application for extension of time to appeal, and dismiss his summons.