RE HOSSAIN IKBAL

HCAL 1611/2018

[2020] HKCFI 1172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1611 OF 2018

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant and he lodged a non‑refoulement claim with the Director of Immigration (“the Director”).  The Director rejected his application and he appealed to the Torture Claims Appeal Board/Non-Refoulement claims Petition Office (“the Board”).  Having considered his evidence, the Board, by its Decision dated 7 August 2018 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court, the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.  He had appeared before this Court.  By Order dated 18 July 2019 (“the Court’s decision”), I refused to grant him leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in his intended judicial review.

3.  The applicant intends to appeal to the Court of Appeal against the Court’s decision.  However, he is out of time under Order 53, rule 3(4), RHC.  The deadline for him to appeal is 1 August 2019.  He took out a summons dated 8 August 2019 for time extension for his appeal.

4.  A hearing was fixed for him to attend court for his application on 4 October 2019.  However, he was absent without prior notice or explanation.  I dismissed his summons for want of prosecution.

5.  By another summons dated 23 October 2019, the applicant applied to set aside the above ex parte order and for the Court to re-consider his application of extension of time for him to appeal the Court’s decision.

The applicant’s affirmation

6.  The applicant filed an affirmation in support of his application.  In his affirmation he submitted that he was admitted in hospital from 23 September 2019 to 16 October 2019. He had taken legal advice and submitted that he was advised that he had good grounds of appeal that were not necessary to be considered at the stage of applying for leave to appeal.

Discussion

7.  The applicant appeared before me.  He confirmed that he was in the hospital on the date of hearing.

8.  I asked him what was his reason that he considered that my decision was wrong.  He said that he had no reason to say that I was wrong in reaching my decision except to say that he had urine and toilet problems and he had to see the doctor every two or three days and that his problems in his own country had not been solved.

9.  The Court of Appeal in Re Adumekwe Rowland Ejike [2019] HKCA 702 28 June 2019 held:

“19. The prospect of success of the intended appeal is important; the court will not grant extension of time for a hopeless appeal to be pursued.”

10.  I accept his explanation for his absence on the last hearing and I set aside the ex parte order of dismissing his application for want of prosecution.

11.  However, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against my decision.  Accordingly, I dismiss his application.