RE MD MOBARAK HOSSIN SHAMIM

HCAL 2041/2018

[2020] HKCFI 1976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2041 OF 2018

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REASONS FOR DECISION

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1.  On 15 June 2020 I 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 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 procedural unfairness in the process before the Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant by a summons issued on 30 June 2020 sought 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 was said to be 29 June 2020, and hence he was late by 1 day with his intended appeal, and was required by the registry to apply by this summons for extension of time to do so. 

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, if he was indeed out of time with his appeal, it would be a delay of just 1 day which cannot, on any view, be regarded as significant, but the fact is that even if the decision was indeed sent by post to him on the same day of the decision on 15 June 2020, as the court record has confirmed, he would not have received it until the earliest on the following day on 16 June 2020, and as Rule 3(4) provides that he may appeal against the judge’s order “within 14 days after such order”, which follows that the last day of the 14-day period for him to file his appeal should fall on 30 June 2020, the day he was required to issue his summon for extension of time, and not 29 June 2020, and hence the Applicant was not late when he tried to file his appeal on that day.  Accordingly, and at the hearing I granted him an extension of time for him to file his notice of appeal within 7 days of the order.    

5.  If on the other hand that I am wrong with the interpretation of Order 53 rule 3(4) as to the time for the 14-day period to run, given the impact of the Covid-19 pandemic had at the material time on the postal service in general, and as I found his delay of just 1 day as insignificant, I would still have exercised my discretion to grant extension of time for the Applicant to file his notice of appeal.