RE MD RIAT

HCAL 362/2018

[2020] HKCFI 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 362 OF 2018

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D E C I S I O N

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1.  On 28 June 2019 Deputy High Court Judge Josiah Lam dismissed the Applicant’s 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 it was his second such application after his first application under HCAL 578/2017 had already been refused by Hon Campbell-Moffat J as wholly without merits and not reasonably arguable.

2.  The Applicant now by a summons issued on 17 December 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 High Court, Cap 4A ended on 12 July 2019, and hence he was late by more than 4 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 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 4 months must be considered as very substantial or excessive, for which he explained in his supporting affirmation that he was at that time in prison serving his sentence and did not know about the decision until November 2019, but in the absence of any further or documentary evidence in support of his claim, nor did he appear at the hearing of his summons to provide further clarification, I am not satisfied that he has given any good reason for his serious delay.    

5.  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 in the absence of any error in the decision being clearly and properly identified by the Applicant, and given the fact that his second application was an abuse of process as founded by the Judge, I do not see any prospect of success in his intended appeal. 

6.  In the premises, it would be futile to extend time for what is clearly a hopeless appeal.  Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.