RE HUSSAIN AZHAR

HCAL 380/2018

[2019] HKCFI 2728

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 380 OF 2018

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DECISION

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1.  On 24 May 2019 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and 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 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 dated 24 May 2019 but issued on 16 September 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 7 June 2019, and hence he was late by more than two months with his intended application after excluding the month of August 2019 for the Court’s summer vacation.

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal 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 two months cannot be regarded as insignificant, for which he explained in his summons that he did not receive any letter from the court but without providing any further particulars or documentary evidence including how he came to know about the decision if he indeed did not receive any letter from the court when the record shows that the decision was sent on the same day to his last reported address and has not been returned through undelivered post.  As he also failed to attend the hearing of his summons without explanation, I am not satisfied that he has provided any valid or good reason for his delay.    

5.  More importantly, nor did he in his summons or affirmation provide any 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, 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. 

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