RE FARRUKH ZAIB

HCAL 670/2017

[2019] HKCFI 2731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 670 OF 2017

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DECISION

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1.  On 28 June 2018 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 Director or the Board or in their decision, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 24 September 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 12 July 2018, and hence he was late by more than 12 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 12 months must be considered as very substantial or excessive, for which he explained at the hearing that at that time he thought it was safe for him to return to his home country in Pakistan, so he did not file any appeal against the decision, but later when he was told that situations had changed and that it was still not safe to return home, he therefore decided to file his appeal, but by then he was already way out of time.

5.  However, when he was asked to provide further particulars such as the dates or even months when he claims to be told of the situations in Pakistan that caused him to make those decisions, or of details of his claimed changes of those situations, he was unable to do so.  As such I am not satisfied that he has provided any valid or good reason for his serious 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 repeated his claim that due to change of situations in his home country, he believes that it is still not safe for him to go home, and therefore he must appeal. As such 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 leave to appeal out of time, and dismiss his summons.