RE MD SHAJAHAN ALI

HCAL 703/2018

[2020] HKCFI 2167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 703 OF 2018 

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D E C I S I O N

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1.  On 19 December 2019 I refused to extend time for the Applicant to file his late 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 upon finding that there was no good reason for his almost 3 months’ delay with his application, that 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 the process before the Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 30 December 2019 seeks leave to appeal against that decision, as although he was then within the 14-day period required by Order 53 rule 3(4) of the Rules of the High Court, Cap 4A (“RHC”) to file his appeal, that decision was then regarded as interlocutory to which section 14AA(1) of the High Court Ordinance, Cap 4 (“HCO”) would apply in that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted, the Applicant was therefore required by the registry to first issue his summons to seek leave to do so.    

3.  However, the Court of Final Appeal has since held in the cases of H v Director of Immigration and AH v Director of Immigration, FACV 1 & 2 of 2020, [2020] HKCFA 22, 14 July 2020, that the refusal of an extension of time which leads inexorably to a decision to refuse leave to apply for judicial review is a decision that falls within the terms of Order 59 rule 21(1)(g) of RHC, to which section 14AA(1) of HCO does not apply and from which an appeal lies as of right.

4.  Henceforth, and as he was then within the 14-day period under Order 53 rule 3(4) of the RHC, the Applicant would not have been late with his appeal had he been allowed to file it on 30 December 2019 when he was instead required to issue his summons.

5.  Accordingly, and in view of the current public health situation due to the Covid-19 pandemic, I propose to deal with the matter in absence of the Applicant, and extend time for him to file his notice of appeal within 14 days of this order.