RE MUHAMMAD NASIR

HCAL 1384/2018

[2019] HKCFI 2924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1384 OF 2018

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D E C I S I O N

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1.  On 3 September 2019 Deputy High Court Judge Josiah Lam 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 regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there were no error of law or procedural unfairness in the process before the Director 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 3 October 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 the High Court, Cap 4A ended on 17 September 2019, and hence he was late by about two weeks with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal 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.  Shortly before the scheduled hearing of his summons, the Applicant on 31 October 2019 applied for legal aid in these proceedings, and the Court has received such a notice from the Legal Aid Department.  Upon considering all the facts of the case, I found no good reason for the Applicant not to have made his legal aid application much earlier, and for reasons which will be apparent below, I decided to lift the legal aid statutory stay of the proceedings and proceeded to deal with the Applicant’s summons as scheduled.

5.  In the Applicant’s case, a delay of two weeks may not be regarded as substantial, for which he explained at the hearing that he never received the decision through the mail and was only told of it when he came to the court to check on his case.  He was however unable to provide any further details or particulars as to when did he come to the court to check on his case, while the record shows that the decision was indeed sent to his last reported address on the same day when it was handed down and that it has never been returned as unlevered post.  In the circumstances I am not satisfied that the Applicant has provided any good or valid reason for his delay.    

6.  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 at the hearing of his summons when he was invited to do so, he could merely repeat his claim that his life would still be in danger back in his home country, and that he therefore needed more time to remain in Hong Kong.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal. 

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