Re Hussain Ashfaq

HCAL 791/2018

[2021] HKCFI 2369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 791 OF 2018

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  10 August 2021

Date of Decision: 24 August 2021

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D E C I S I O N

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1.On 22 April 2021 I 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 that 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 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 now by a summons issued on 24 May 2021 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 6 May 2021, and hence he was 18 days late 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 18 days must be considered as significant, for which he explained at the hearing of his summons that he did not have money to get legal assistance for his intended appeal and had had to borrow money from his family back home, but by the time he received the money in the mail, he was already out of time with the filing of his notice of appeal.

5.The court record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and as the applicant’s explanation that he needed to borrow money to get legal assistance for his intended appeal even if true can never be accepted as a valid reason for non-compliances of the rules, I am not satisfied that the applicant has provided any good reason for his 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 arguable that the decision was unfair or unreasonable either in his summons or his affirmation, and at the hearing the applicant merely stated that he still has problems in his home country that his life would be in danger 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 either.

7.In the premises, and for the reasons given, 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