RE AMIN KHAN

HCAL 576/2018

[2020] HKCFI 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 576 OF 2018

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D E C I S I O N

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1.  On 9 August 2019 Deputy High Court Judge Josiah Lam 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 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 issued on 22 November 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 High Court, Cap. 4A ended on 14 September 2019 after discounting the month of August 2019 for the summer vacation, and hence he was late by more than 2 months 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 2 months must be considered as significant or excessive, for which he explained at the hearing of his summons that he never received the decision in his mail box, and that it was only on 19 November 2019 that he found the letter containing the decision lying on the floor at the entrance of his flat, and as there were many other tenants in his flat, he suspected that someone must have taken his letter by mistake and later just dropped it on the floor, and that when he eventually discovered it he was by then way out of time with his intended appeal.

5.  The court record reveals that the decision was sent to the Applicant on the same day of 9 August 2019, and even assuming what he claimed to be true that it had been put in the wrong mail box or taken by some other tenant by mistake, I find it hard to believe that it would have been subsequently dropped on the floor and was discovered by the Applicant more than 3 months later.  As such I am not satisfied that the Applicant has provided any valid explanation for his delay.     

6.  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 when he was invited to do so at the hearing, he conceded that he is unable to find any mistake or error in the decision, but as his life would still be at risk in his home country, he asked to be given further time to remain in Hong Kong until his problem back home has been resolved.  In the circumstances 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.

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