RE RAZZAQ

HCAL 831/2017

[2019] HKCFI 1681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 831 OF 2017

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D E C I S I O N

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1.  On 22 March 2019 I refused to extend time for the applicant’s late application for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal against an earlier decision of the Director of Immigration (“the Director”) in rejecting his non-refoulement claim upon finding no good reason for his more than four months’ delay with his intended application, that none of the grounds put forward by him was reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.  The applicant now by a summons dated 29 April 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 5 April 2019, and hence he was late by more than three weeks with his intended appeal. 

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 three weeks cannot be said to be insignificant, for which he explained in his supporting affirmation of the same date that he did not receive the decision in the mail to his residential address, and that he was only informed by the immigration officer when he reported to the Immigration Department on 8 April 2019 when by then he was already out of time with his intended appeal.  As the court record shows that the decision was sent to his reported address on the same day of the decision and that it has not been returned through undelivered mail, and in the absence of any independent or documentary evidence in support of his explanation, I am not satisfied that the applicant has provided any good reason for his delay.

5.  More importantly, he did not 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 his affirmation he merely repeated his criticisms and complaints of the Director’s decision which had all been dealt with and disposed of in my decision in refusing to extend time for his late application for judicial review, and in the absence of any errors 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.