RE SAMIULLAH

HCAL 1265/2018

[2019] HKCFI 2427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1265 OF 2018

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DECISION

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1.  On 17 May 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board(“the Board”) dismissing his appeal regarding his non-refoulement claim upon finding no ground had been put forward by him for his intended challenge, that there was no error of law or procedural unfairness in the 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 31 July 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 31 May 2019, and hence he was late by two 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 two months must be considered as significant or substantial, for which he explained in his supporting affirmation that he did not receive the decision within the 14-day period for him to file his intended appeal, and hence he was not given a reasonable opportunity to present his case.

5.  The court record shows that the decision was in fact sent by ordinary post to his last reported address on the same day of the decision, and that it had not been returned through undelivered post, hence in the absence of any further particulars or documentary evidence from the Applicant such as the envelope with a posting date showing that it was in fact sent on a much later day, I am not convinced that the he received the decision late as alleged as any valid explanation for his two month’s delay with his intended appeal.  

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, as he also failed to appear at the hearing of his summons without any explanation. As such and in the absence of any error in the decision being shown 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 leave to appeal out of time, and dismiss his summons.