RE CHAYAL MAHABUB

HCAL 598/2017

[2019] HKCFI 2383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 598 OF 2017

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DECISION

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1.  On 28 June 2019 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”) 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 the process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons dated 22 July 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 12 July 2019, and hence he was late by 10 days 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 10 days may not be regarded as substantial or excessive, for which he explained in his supporting affirmation that he never received the decision through the mail, and it was only much later that he was so informed by the Immigration Department when he reported for his recognizance, but when he was eventually able to find a friend to help him to prepare the necessary documents for his appeal, he was already out of time.  Whilst he did not produce any documentary evidence in support of his claim, I am prepared to accept his explanation for his delay in the circumstances.

5.  However, he did not 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,nor did he appear at the hearing of his summons or provide any explanation for his absence.  As such and in the absence of any error in the decision being identified by the Applicant, I do not see any prospect of success in his intended appeal. 

6.  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.