RE SHAKEEL MUHAMMAD

HCAL 473/2017

[2019] HKCFI 1326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 473 OF 2017

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D E C I S I O N

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1.  On 9 February 2018 Deputy High Court Judge Woodcock refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal/petition regarding his non-refoulement claim upon finding none of the grounds put forward by him as reasonably arguable or with any prospect of success in his intended application.

2.  The applicant now by a summons issued on 25 March 2019 seeks leave to appeal against that decision out of time (although he stated that it was for leave to apply for judicial review, he did clarify at the hearing that it was for leave to appeal out of time), as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 23 February 2018, and hence he was late by more than one year with his intended appeal.

3.  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 respondent if an extension of time were granted.

4.  In the applicant’s case a delay of more than one year must be regarded as very substantial or excessive, for which he explained in his supporting affirmation of the same date that he did not receive the decision on time until he was later told by the Immigration Department that he would be detained and repatriated, but the court record shows that the decision was sent to his then last known address, and in the absence of any further particulars from the applicant or any documentary evidence that he had changed his address at that time of which was his duty to inform the court, and even then that cannot validly explain such substantial delay on his part.  In the circumstances I do not accept that he has provided any good reason for his delay.

5.  Nor did he provide any draft or proposed ground for his appeal either in his summons or affirmation or at the hearing of his summons, or any particulars as to any error in the decision or why it was unreasonable or unfair, notwithstanding his claim in his affirmation that he had good groundof appeal.  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 me a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.