RE NAWAZ REHMAT

HCAL 798/2018

[2020] HKCFI 3040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 798 of 2018

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DECISION

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Background

1.  On 28 July 2020, I refused to grant leave 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 27 April 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 13 July 2017 rejecting the applicant’s non-refoulement claim.

2.  I refused to grant leave to the applicant to apply for judicial review for reasons stated in [11-18] of my decision (Form CALL-1).  I found in conclusion that the applicant’s intended application for judicial review not reasonably arguable.

3.  By a summons filed on 3 September 2020, the applicant applied for extension of time to appeal against my refusal of leave.  The applicant had 14 days from the order to apply to appeal that decision to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time.  His application was late by more than 3 weeks with his intended appeal.

4.  In his summons and supporting affirmation of 3 September 2020, the applicant stated that he did not receive any letter from the court as he had changed his address.  He thought he needed not update the court of his address as he already informed the Immigration Department of the change.  He did not provide any draft or proposed grounds of appeal, or particulars of errors or unfairness in my decision.  He only stated that he has poor command of written English or Chinese and he does not understand the judicial system of Hong Kong.  He is also unable to hire a private lawyer.

5.  At the hearing, he reiterated that he did not receive the court’s decision for the same reason.  As to the grounds of appeal, he said he wants the court to reconsider his case again.

Discussion

6.  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.

7.  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.

8.  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.

9.  The applicant explained that he had not received the decision as he had changed his address but he only informed the Immigration Department.  According to the court’s record, the court’s order and the Form CALL-1 were properly served upon the address given by the applicant.  The documents were sent to the applicant by post and have not been returned to the High Court as unclaimed or undelivered.  Presumably the documents reached the destination.  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.

10.  In my view, the applicant does not have a cogent explanation for the delay.  The delay is not excusable.  In these circumstances, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal.

11.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  The applicant has not identified any grounds of appeal or errors in the court’s decision.  None could be ascertained from the papers or at the hearing.  Asking the court to reconsider his case is not a viable ground of appeal.

Conclusion

13.  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 3 September 2020 taken out by the applicant is dismissed.