RE MEHMOOD ARSHAD

HCAL 1583/2018

[2020] HKCFI 1175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1583 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 13 July 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 (“RHC”), 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 8 August 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.  He considered that he was out of time under Order 53, rule 3(4), RHC.  The deadline for him to appeal should be 22 August 2019.  He took out a summons dated 22 August 2019 for time extension for his appeal.

4.  A hearing was fixed for him to attend court for his application on 14 November 2019 and he attended the hearing.

The applicant’s affirmation

5.  The applicant filed an affirmation in support of his application.  In his affirmation he said that he did not receive the Court’s decision.  He said that his landlord had gone to China with the letter-box key, so he was unable to open the letter-box to get the letter.  This reason is unimportant as he made a mistake as to the deadline for him to appeal.  Had he made his appeal on the date of his summons, he did not have to apply for leave to appeal out of time because he was within time to appeal.  Now he is out of time.

Discussion

6.  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.”

7.  As he had not stated the grounds in support of his appeal, I asked him if he could state what error I had committed in coming to my decision.  He said that he had no reason to appeal against my decision.  He simply asked for more time to stay.

8.  In the circumstances, I find that the applicant is unable to show that he has a reasonable prospect of success in his intended appeal against my decision. Accordingly, I dismiss his application.