RE SHEIKH AL ISLAM

HCAL 430/2018

[2020] HKCFI 203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 430 OF 2018

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D E C I S I O N

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1.  On 5 September 2019 I allowed the Applicant’s written request dated 26 August 2019 for an order to dismiss his second application for leave 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, as he stated in his request that he “want to return back to my country as my problems were solved and I am safe to be back to Bangladesh. Please stop all the further proceedings of my application which I attend the hearing already. Please dismiss my leave application”.

2.  That order as amended was filed on 20 September 2019.  However, the Applicant on 9 September 2019 in writing requested to re‑open his leave application for judicial review, as he claimed that his problem back home had remained the same as before, of which I decided to deal with on papers in his absence, and on 6 November 2019 I refused his request to re‑open upon ruling that the court was functus to deal with the matter, and that in any event the principle of res judicata would have applied to his second application to re-litigate his case regarding the Board’s decision after failing to obtain leave from the court in his first application, as I so stated in paragraph 11 of my decision as follows:

“Clearly having already dismissed his application, this Court is functus to deal with the matter any further, and that there is no power to re-open any such application. Furthermore, had the Applicant not made his earlier request for its dismissal, I would have done the same, as the principle of res judicata clearly applied to his second leave application, and that it was an abuse of process for the Applicant to try to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board after failing to obtain leave from the Court in his previous proceedings under HCAL 377/2017.”

3.  The Applicant now by a summons issued on 23 September 2019 seeks leave to appeal against that earlier order of 5 September 2019 as amended on 20 September 2019 out of time, but it seems to me that he was then actually not 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 would only end on 4 October 2019.

4.  Nevertheless, and for whatever reason that he thought he was out of time, the fact is that no notice of appeal was ever filed by the Applicant during that period, and by the time he came before me on 20 December 2019 for the hearing of his summons, he was then out of time by more than 2 months with his intended appeal.    

5.  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: 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.

6.  In the Applicant’s case, a delay of more than 2 months cannot be considered as insignificant, and for the reasons stated in my decision of 6 November 2019 as noted above, there is simply no basis or merits in his intended appeal, and as he did not either in his summons or his 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 that at the hearing he merely claimed that he “needs to remain in Hong Kong for a further 6 or 7 months until his problems are solved when he would definitely go home”, which seems to me a clear indication of his yet another attempt to abuse the process.  As such and for these reasons, 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.