Hussain Zakir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1923/2019

[2025] HKCFI 641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1923 OF 2019

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BETWEEN

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DECISION

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Introduction

1.This is the Applicant’s applications by summons filed on 14 January 2025 (the “Summons”)  seeking leave to appeal the order of this Court dated 12 December 2024 (the “Order”)  refusing his application for leave to apply for judicial review (the “leave application”).   

Legal principles applicable to application for extension of time to appeal

2.Under Order 53, rule 3(4)  of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 14 January 2025 when the Summons was filed, his application was nineteen days out of time.  Leave to appeal out of time is required. 

3.In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of the delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if extension of time was granted.  Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time.  The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion

4.The application is nineteen days out of time.  The delay is substantial in the context of a fourteen-day appeal period.  However, indulgence may be given if he has a reasonable explanation for the delay and can demonstrate that the intended appeal has good prospect of success.  The reason for the delay he gave in the Summons is that he “did not receive the order within reasonable period of time allowing the applicant to appeal within time”.  In his supporting affirmation, he said he “didn’t receive the order and judgment within 14 days”.  Both explanations are bare assertions without sufficient particulars.  He gave no particulars as to when and the circumstances under which he received the Order he sought to appeal.  This information is needed to enable this Court to assess the credibility and reasonableness of his explanation for the delay.  In addition, he has not put forward the grounds of his intended appeal which is needed to enable this Court to assess the prospect of success of his intended appeal. 

5.To assist him to present a proper application for extension of time, the Court gave him specific directions on 16 January 2025 to file an affirmation or statement setting out the date when and the circumstances under which he received the Order with supporting documentary evidence, if available, and the grounds of his proposed appeal within 14 days.  The letter containing the directions were sent to the address he gave in his Summons.  The delivery service of Hong Kong Post is usually very reliable.  The letter has not been returned through the course of mail.  There is no mistake in the address to which the directions were sent.  There is nothing to suggest the Applicant has not received the directions.  The information is required to assess the credibility and reasonableness of his explanation for the delay and the prospect of success of his intended appeal in order that the Court may exercise discretion to grant him extension of time.  He must appreciate that without providing the information and the grounds the Court could have no basis to consider his application for extension of time and his application stands no chance that it will be allowed. 

6.Despite clear directions requesting for the information and the grounds of his intended appeal, the Applicant chose not to provide the information and his grounds of intended appeal.  The Court could only assume he deliberately chose not to comply with the directions because he has no reasonable explanation to offer for the delay and his intended appeal has no prospect of success.  Accordingly, his application for extension of time to appeal is refused.

The applicant is not represented