RE ALAM KHAN

HCAL 361/2018

[2019] HKCFI 2908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 361 OF 2018

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D E C I S I O N

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1.  On 5 October 2018 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 regarding 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 his 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 27 September 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 19 October 2018, and hence he was late by more than 10 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 more than 10 months must be considered as very substantial and excessive, for which he explained at the hearing of his summons that he was then in prison after being convicted of the offence of undertaking unauthorized employment, and that upon his release he was then transferred to the Castle Peak Bay Immigration Detention Centre, hence he was not aware of the decision until he was so informed by the Immigration Department when by then he was way out of time with his intended appeal.

5.  As he did not produce any documentary evidence in support of his claim, and even accepting that he may have been detained at the material time, and with the inevitable inconvenience to access to legal assistance, I am not satisfied that any of these can be accepted as valid or good reasons for his serious delay.

6.  More importantly, nor did he in his summons or affirmation provide any 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, and in his supporting affirmation he merely repeated his claimed reason for his delay, and complained that he was not given the opportunity to clarify his situation in his home country as follows:

“ I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my situation in my country. The decision has heavily relied on the Country of Origin provided by the ImmD. Moreover, it’s not sufficient that was a litigant in person & unrepresented thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be dismissed for want of prosecution as I was in custody of Correction Service Department. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

7.  It is however clear from the court record that the Applicant did appear before DHCJ Lam for his leave application during which he was able to make representation to the court with the assistance of an interpreter (see [29] – [31] of the decision), hence his complaint of not being given any opportunity to clarify his situation in his home country is plainly and factually wrong.  As such 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. 

8.  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.