RE WAHEED AHMAD

HCAL 43/2018

[2020] HKCFI 2233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 43 OF 2018

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D E C I S I O N

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1.  On 21 December 2018 I refused to extend time for the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) in rejecting his non-refoulement claim upon finding that there was no good reason for his 9 ½ months delay with his intended application, that 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 Director or in his decision, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 21 May 2020 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 High Court, Cap 4A ended on 4 January 2019, and hence he was late by more than 16 months 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 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 16 months must be considered as very substantial and excessive, for which he explained in his affirmation that he was late due to “lack of knowledge and insufficient sources”, and at the hearing he elaborated that he never received the decision until he was later informed by the Immigration Department when by then he was already way out of time.

5.  The court record shows that the decision was sent on the same day to the Applicant last reported address which is still the same address as stated in his present summons and which has never been returned through undelivered mail, and in the absence of any other or documentary evidence in support of his claim, I am not satisfied that he has any valid reason for his such serious delay.  

6.  More importantly, nor did he in his summon or supporting affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, and at the hearing of his summons he merely repeated his claim that his life would be in danger if refouled to his home country.  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.       

7.  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.