RE SUMON

HCAL 926/2017

[2019] HKCFI 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 926 OF 2017

______________

______________

D E C I S I O N

______________

1.  This is an application for extension of time to appeal against my decision dated 20 July 2018 dismissing the applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in rejecting his non-refoulement claim.

2.  The applicant, a national of Bangladesh who entered Hong Kong illegally on 10 April 2007, and after his arrest by the police in 2008 and was referred to the Immigration Department, he lodged a torture claim and subsequently a non-refoulement claim which was rejected by the Director of Immigration (“the Director”) on 11 February 2015.

3.  He then appealed to the Board and when he failed to appear at his oral hearing without any explanation, the Board proceeded to dismiss his appeal and confirmed the Director’s decision on 20 April 2017.

4.  On 28 June 2017 the applicant filed his Form 86 under HCAL 340/2017 before Deputy High Court Judge Woodcock for leave to apply for judicial review of the Board’s decision, and when he again failed to appear at his oral hearing the learned judge proceeded to deal with his application in his absence and upon finding none of his grounds reasonably arguable refused his application on 29 September 2017. 

5.  The applicant did not appeal against that decision and instead filed another Form 86 on 22 November 2017 in these proceedings for leave again to apply for judicial review of the Board’s decision, and again he failedto appear at his oral hearing without any valid explanation.  On 20 July 2018 I found that the principle of res judicata applies and dismissed his second application as an abuse of court process.

6.  On 8 August 2018 the applicant issued the summons now beforeme for extension of time to appeal against my decision, as the 14-day period for him to do so ended on 3 August 2018, and the applicant was therefore late by about five days.

7.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; and Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016).

8.  In the present case, the applicant was late by five days which is not substantial, for which he gave a contradictory explanation in his supporting affirmation of the same date in paragraph 2 when he stated that:

“ … the Order was made and served on me on 20^th day of July 2017 but unfortunately I couldn’t get that letter on time. As I was applied for the Judicial Review leave while I was detained in theCIC and after my release from the CIC I didn’t write to the court about my residential address properly. I think this is the only reason I missed the judgment and the court order.”

9.  At the oral hearing of his summons the applicant clarified that it was his friend who prepared his affirmation for him as he does not read or write English and that he missed the mistake made by his friend about the order being served on him on 20 July 2018, and confirmed that he did not receive the decision until later when he reported his recognizance to the Immigration Department that he was informed by them of the decision.  Although he had not provided any particulars of what was exactly the cause of his delay, since the delay is not serious, I am prepared to accept his explanation.

10.  I now turn to the prospect of his intended appeal against my decision, which is a crucial consideration in an application to extend time: see Islam Raja Rais v Director of Immigration (unreported) HCMP 881/2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Akbar Md Faishal [2018] HKCA 566.

11.  In his summons the applicant stated that “the judgment is unfair and unreasonable”, and then referred to his supporting affirmation for “the rest of the grounds”.

12.  In his affirmation the applicant stated:

“ 4. … I have since taken legal advice and, I understand that there is a good grounds of appeal that was not necessarily considered at the stage of applying for the leave for Judicial Review. Obviously, this was my own oversight brought on by the fact that I was acting in person at this stage of proceedings. Additionally, I was informed that the Director and the Adjudicator did not saw the grounds to reverse their decision. I would prefer to submit the order from the High Court along with the affirmation and Summons as Exhibit ‘A’.

5. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal put of me.”

13.  For the rest of his affirmation the applicant simply repeated the dangerous problems he faced in Bangladesh that drove him to lodge his non-refoulement claim in Hong Kong, whilst the Exhibit A to his affirmation was just a copy of my decision.  As such the applicant has not provided any ground of appeal, or any reason why my decision was wrong in dismissing his second application for leave to apply for judicial review of the Board’s decision after his first one had already been dealt with and disposed of by another court and that it was an abuse of court process.

14.  As his intended appeal has no prospect of success whatsoever, it would be futile to extend time for a hopeless exercise, and accordingly I refuse the application for leave to appeal out of time, and dismiss the applicant’s summons.