RE RAHMAN MAJIBAR

HCAL 151/2017

[2019] HKCFI 820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 151 OF 2017

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D E C I S I O N

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1.  On 22 September 2017 Deputy High Court Judge Woodcock refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim and his subsequent appeal upon finding none of the grounds put forward by him as reasonably arguable or with any prospect of success in his intended application.

2.  The applicant now by a summons issued on 21 December 2018 seeks leave to appeal against that decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 6 October 2017, and hence he was late by more than 14 months with his intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

4.  In the applicant’s case a delay of more than 14 months must be regarded as very substantial and inordinate, for which he explained in his supporting affirmation of the same date that he “was not well equipped with the procedural knowledge on how the civil appeal is filed and did not have the requisite means to hire a lawyer”, and at the hearing of his summons he further clarified that he did not approach the court to file any appeal for fear that he might be arrested and deported by the Immigration Department until now when he was able to get a friend to prepare the documents for him.  Ignorance of the rule cannot of course be a valid reason for the failure of its compliance, while a decision to not doing anything about his intended appealfor more than a year to avoid being detected by the Immigration Departmentis equally unacceptable as a reason for such excessive delay.  As such I do not accept that he has provided any good reason for his delay with his intended appeal.

5.  Nor did he provide any draft or proposed ground for his appeal,or any particulars as to any error in the decision or why it was unfair or unreasonable, and in the absence of which I am unable to see any prospect of success in his intended appeal.

6.  In the premises it would be futile to extend time for what appears to me a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.