RE HASSAN WASEEM

HCAL 467/2018

[2019] HKCFI 2909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 467 OF 2018

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D E C I S I O N

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1.  On 1 February 2019 Deputy High Court Judge Josiah Lam refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was 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 9 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 15 February 2019, and hence he was late by almost seven months 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.  In the Applicant’s case, a delay of almost seven months must be considered as very substantial or excessive, for which he explained in his supporting affirmation that initially he had wanted to appeal against the Decision, but as he was told on the phone by his wife that his enemies were no longer looking for him and therefore it would be safe for him to return to Pakistan, he therefore did not proceed with his intended appeal until much later when he discovered that he had been misled by his wife about the situation back home, and that it would still not be safe for him to return home, and hence he decided to proceed to appeal but by then he was way out of time.

5.  In the absence of any further details or particulars disclosed in his affirmation such as the time when he was first told by his wife that it would be safe to return home, or of his subsequent discovery that he had been misled about the situation in Pakistan, nor was he able to at the hearing of his summons despite being invited by this Court to do so.  As such I am not satisfied that the Applicant has been able to provide a valid or good reason for his substantial delay.

6.  More importantly, nor did he in his summons or affirmation provide any proper 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, other than a regurgitation of his complaints against the Director’s rejection of his claim instead of the Court’s decision, 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.