MOHAMMED AKBAR v. DIRECTOR OF IMMIGRATION

CACV 97/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 97 OF 2017

(ON APPEAL FROM HCAL NO 213 OF 2015)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Poon JA (giving the Judgment of the Court) :

1.  This is an application by the appellant for leave to comply with Order 59, rule 5(1)(a) of the Rules of the High Court, Cap 4A out of time.  It is opposed by the Director of Immigration.  After considering the written materials, we take the view that the application can be disposed of on paper without an oral hearing.  We now hand down our judgment.

2.  By Form 86 dated 4 November 2015, the appellant applied for leave to apply for judicial review against the decision of the Director dated 11 July 2014 refusing the applications for his two step sons to join him as dependants and the Director’s decision dated 4 August 2015 refusing to reverse the said decision.

3.  By a decision dated 7 April 2017, P Li J refused to grant leave, with full reasons, and ordered costs against the appellant.  His Lordship’s order was sealed on 7 April 2017.

4.  The appellant filed a notice of appeal and the notice of setting down an appeal on 21 April 2017.   The notice of appeal was served on the respondent on the same day.  Under Order 59, rule 5(1)(a), the appellant had to lodge the sealed order of Li J within 7 days from 21 April 2017, that is, on or before 4 May 2017.  The appellant was also reminded to do so by directions of the court of which he acknowledged receipt on 21 April 2017.  However, the appellant did not lodge the sealed order on or before 4 May 2017.  He was further reminded by the court to comply with Order 59, rule 5(1)(a) by a letter dated 18 May 2017.  The appellant only lodged a copy of the seal order on 25 May 2017.

5.  By a summons dated 22 June 2017, the appellant took out the present application.  He explained that he had not received a copy of the sealed order as at 21 April 2017.  He was therefore unable to lodge it within time.

6.  The Director opposed the application on the ground that the appellant’s appeal does not have any reasonable prospect of success.  Given the lack of merits and the public interest in ensuring the judicial review proceedings are concluded swiftly, the Director submitted that the court should refuse to extend the time for compliance with Order 59, rule 5(1)(a).

7.  In our view, the appellant must satisfy the court why he had been unable to serve a copy of the sealed order within time. His only explanation is that he had not received it as at 21 April 2017.  He had however conspicuously failed to state when he actually received it.  Absent such information, we are not satisfied that the appellant has sufficiently explained the delay.

8.  In any event, we take the view that if the appeal is wholly unmeritorious and bound to fail, it would be a futile exercise to grant an extension of time to comply with Order 59, rule 5(1)(a).  Judicial resources and the respondent’s costs should not be so wasted.  We have carefully considered the reasons of Li J for refusing the application for leave to apply for judicial review and the appellant’s grounds of appeal.  We agree with the Director that the appellant’s appeal is wholly unmeritorious.  It does not have any prospect of success.

9.  For the above reasons, we refuse to grant the appellant time to comply with Order 59, rule 5(1)(a).  We dismiss his summons dated 22 June 2017.