RE MOHSIN MOHAMMED

HCAL 1782/2018

[2020] HKCFI 3041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1782 of 2018

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DECISION

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Background

1.  On 13 May 2020, Deputy High Court Judge Lung (“the Judge”) refused to grant extension of time to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 1 June 2017.  The Board in its decision upheld the decisions of the Director of Immigration (“the Director”) dated 15 April 2016 and 8 March 2017 rejecting the applicant’s non-refoulement claim.

2.  The Judge refused to grant extension to the applicant to apply for judicial review for reasons stated in [16-21] of his decision (Form CALL-1).  He noted that the application was late by more than 11 months and the court had to consider the merits of his case in order to determine whether time should be extended.  Significantly the Judge found in his conclusion that the applicant’s intended application for judicial review had no reasonable prospect of success.  He therefore refused to extend time and dismiss the application.

3.  By a summons filed on 22 June 2020, the applicant applied for leave to appeal against the Judge’s refusal out of time.

4.  On 14 July 2020, the decision of H v Director of Immigration [2020] HKCFA 22 was handed down by the Court of Final Appeal.  The CFA held that the refusal by a judge of an extension of time to make an application for judicial review is part and parcel of a refusal to grant leave to apply for judicial review.  Therefore, the decision is appealable as of right by reason of Order 59, rule 21(1)(g): paragraph 42 of the judgment.  There is no further need under section 14AA of the High Court Ordinance (Cap 4) for an applicant to seek leave to appeal before the Court of First Instance judge before he/ she may appeal directly.

5.  Given the circumstances, I am prepared to treat the applicant’s summons application as an application for extension of time to appeal against the Judge’s Decision.

6.  However, the applicant still has to bring his application to appeal within 14 days as prescribed under Order 53, rule 3(4) of the Rules of the High Court.  By the time the applicant’s summons was filed, the applicant was out of time to appeal for nearly a month.

7.  In his supporting affirmation of 22 June 2020, the applicant did not provide any draft or proposed grounds of appeal, or particulars of errors or unfairness of the Judge.  He appeared to be explaining that his application was late as he was not aware of the rule that he must appeal “within 7 days” (sic).

8.  At the hearing, he gave another vague explanation that he received the Judge’s order late because he was living at a different address, but he accepted that the letter came to the right address.  As to his grounds of appeal, he only said he did not want to go back to his home country because he worried about his life and safety.

9.  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.

10.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  In that case, the crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading the Court of Appeal to reverse the decision of the judge.

11.  On the other hand, where the court does not accept the applicant’s explanation for delay, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

12.  In the present case, the applicant was late by nearly a month.  His explanations for the late application were vague and inconsistent.  I do not accept his explanations.  In any event, it is the duty of a litigant to give the court an address and update it to which correspondence or notice can come to the litigant’s attention in a timely manner.  The consequences of any delay arising from failing to do so will fall upon the litigant.  And ignorance of the law is generally not a valid explanation for non-compliance with the rules of the court.  In my view, the applicant does not have a cogent explanation for the delay.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.

13.  The Board found the applicant’s claims in relation to his alleged material incidents incredible.  There would be no factual basis for his claim.  Moreover, the Board found that internal relocation is a reasonable and safe alternative for the applicant.  The Judge properly reviewed the decision of the Board with rigorous examination and anxious scrutiny, he could not find any public law grounds that warrant the court’s interference with the decision.  The Judge demonstrated in his consideration that he had applied the relevant legal principles correctly and considered all the relevant issues reasonably and properly.

14.  Importantly, the applicant has not identified any grounds of appeal or errors in the Judge’s decision.  None could be ascertained from the papers or at the hearing.

15.  Having considered the materials before me, I am of the view that the findings by the Board and the Judge’s observations are justified.  The Judge was perfectly entitled to refuse to grant extension of time for leave to apply for judicial review.

Conclusion

16.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  Accordingly, I refuse to grant any extension of time, and the summons dated 22 June 2020 taken out by the applicant is dismissed.