RE JUTT MUHAMMAD WAQAS

HCAL 224/2017

[2019] HKCFI 1325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 224 OF 2017

_____________

_____________

_____________

D E C I S I O N

_____________

1.  On 29 March 2018 I 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/petition regarding his non-refoulement claim 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 20 March 2019 seeks leave to appeal against my decision (“the 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 12 April 2018, and hence he was more than 10 months late with his application.

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 10 months must be regarded as very substantial or excessive, for which he explained in his supporting affirmation of the same date that as he was a litigant in person and legally unrepresented that he was not aware of the rules requiring the filing of appeal within 14 days.  Ignorance of the law of course cannot be accepted as any valid reason for delay.

5.  At the hearing of his summons, the applicant further clarified that he never received the Decision as he had changed his address without informing the Court, and it was not until much later when he was able to get advice from a friend that he decided to go ahead to file his appeal.

6.  It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner, as the applicant was so informed by the Immigration Department when he first lodged his claim, and as he was so reminded again in every step of his proceedings thereafter, and hence the consequence of any delay occasioned by his own failure to inform the Court of his change of address fell squarely on his shoulder.  As such I do not accept that he has provided any good reason for his substantial delay.

7.  Nor did he provide any draft or proposed ground for his appeal in his summons, other than some complaints in his affirmation that the Court reached the Decision without allowing him an opportunity to clarify his situation in his country, to which I take it to mean that he was not given any oral hearing for his leave application, but which he had never requested for one in the first place, while his other complaint of the Court relying too heavily on the COI provided by the Director is factually incorrect nor evidenced in the Decision, and that in any event it was not part of the reasons stated in the Decision why his leave application was refused.

8.  Again at the hearing of his summons the applicant clarified that he did not in fact have any valid ground to appeal against the Decision, but that as his friend back home had told him that he would be able to find further evidence to support his claim, he would therefore like the Court to review his claim in the hope that his friend will eventually be able to find further evidence and bring to Hong Kong to help him with his claim.  Clearly an intended appeal based merely on just hope does not reveal any realistic prospect of success, nor is it for the Court to review non-refoulement claims. As such I do not see any merits or prospect of success in the applicant’s intended appeal. 

9.  In the premises and for these reasons 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.