RE ALAM MAHIR

HCAL 125/2017

[2018] HKCFI 2420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 125 OF 2017

______________

______________

__________________

D E C I S I O N

__________________

1.  On 25 August 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 (“the Board”) in dismissing his appeal/petition regarding his non-refoulement claim upon finding none of the grounds put forward by him as reasonably arguable or with any prospect of success in his intended application.

2.  The applicant now by a summons issued on 24 September 2018 seeks leave to appeal against that decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 8 September 2017, and hence he was late by more than one year 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 will have regard to (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 an extension of time were granted.

4.  In the applicant’s case a delay of more than one year must be regarded as very substantial or excessive.  In his supporting affirmation of the same date he explained that he did not receive any letter from the Court and hence was not aware of the decision until he was detained by the Immigration Department when he was told of the decision and was thereforeunable to lodge his appeal until now, but at the hearing of his summons before me he clarified that as he was not aware of the rule and that his friends did not give him proper advice which accounted for the delay.  Given these seemingly contradictory explanations, and that he was unable to explain why the decision did not reach him at his last known reported address at the material time, I do not accept that he has provided any valid explanation for such considerable delay.

5.  To decide whether there is good reason to extend time it would be relevant to consider the prospect of his intended appeal by referring to his proposed grounds of appeal, of which he however did not provide any despite his claim in his affirmation that he has good grounds,and in the absence of any particulars as to any error in the decision or why it was unreasonable or unfair, I am unable to see any prospect of success in his intended appeal.

6.  In the premises it would be futile to extend time for what appears to me a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.