RE MOHAMMED RONI KHAN

HCAL 721/2018

[2019] HKCFI 1674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 721 OF 2018

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D E C I S I O N

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1.  On 6 March 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/petition regarding his non-refoulement claim upon finding none of the grounds put forward by him as reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no realistic prospect of success in his intended application.

2.  The applicant now by a summons issued on 14 May 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 20 March 2019, and hence he was late by about one month and three weeks with his intended appeal.

3.  In considering whether to extend time for appealing 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 M K 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 almost two months cannot besaid to be insignificant, for which he explained at the hearing of his summons that he never received the decision from the Court and hence was not aware of it until he was told by the immigration officer in May 2019 when he reported on his recognizance.  However, as the Court record shows that the decision was sent on the same day to his last reported address which has not been returned undelivered, and as he has confirmed that he did not change his address at the material time and that he had reported to the Immigration Department every two weeks without fail, I am not persuaded that he never received the decision and that it was only when he was told by the immigration officer in May 2019 that he became aware of the decision.  Accordingly I do not accept that he has provided any good reason for his delay.      

5.  More importantly, nor did he provide in his summons or affirmation any draft or proposed ground of appeal, or any particulars as to any error in the decision or why it may be argued as unfair or unreasonable, and when pressed at the hearing, he conceded that he wants to appeal simply because he does not agree with the Court’s decision, and that he just wants to prolong his stay in Hong Kong.  As such 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 be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.