RE RAZA ASIF

HCAL 742/2017

[2019] HKCFI 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 742 OF 2017

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D E C I S I O N

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1.  On 25 July 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”) in 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 24 October 2018 seeks leave to appeal against that decision 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 8 August 2018, and hence he was late by 1 ½ months with his intended appeal after taking into account of the Court’s summer vacation.

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 some one and a half months must be regarded as significant or substantial.  In his supporting affirmation of the same date the applicant explained that he did not receive the decision from the Court and hence did not lodge his appeal within time until much later when he was informed by the Immigration Department when he reported to his recognizance.

5.  At the hearing of his summons before me the applicant further clarified that although he had been residing at the same address for the past three years, he had never received any mail from the Court or from anyone as his rented residence was located in a remote village in Yuen Long with no mail box or any means to receive mails, and that he had always relied on receiving news and progress about his claim from the immigration officer in charge of his case.  I found this explanation of his incredible given that his rented residence has a proper and detailed address which had also been rented to several other tenants as disclosed by the applicant, and that he had never raised this problem with the Director or the Board or the Court before until now.  As such I do not accept that he has given a credible explanation, let alone a good or valid reason, for his substantial delay.

6.  As for the prospect of his intended appeal, the applicant did put forward two grounds as follows:

 (1) that the learned judge erred in concluding that there was no failure on the part of the Board to adhere to a high standard of fairness in assessing his claim; and

 (2) that the learned judge failed to make sufficient enquiry before finalizing her decision that his application for leave to apply for judicial review was not substantiated. 

7.  These are however just some broad and vague assertions without any particulars or specifics or elaboration as to exactly how the learned judge had failed to apply high standards of fairness or how she had failed to make sufficient enquiry of the Board’s decision.

8.  As correctly pointed out by the learned judge, the adjudicator rejected the applicant’s claim on its adverse findings against his credibility based on proper and detailed evaluation of the evidence and materials before the Board including the testimony and answers given by the applicant at the hearing of his appeal, which was well within the province of the adjudicator and with which the Court in its judicial review jurisdiction will not likely interfere.  After having made rigorous examination and anxious scrutiny of the materials available before her, the learned judge did not find any fault in the decision of the adjudicator.

9.  In the premises I do not find that the applicant has put forth any viable ground to reverse the judge’s decision, and I do not see any prospect of success in his intended appeal with his proposed grounds.  Accordingly it would be futile to extend time for what appears to me a hopeless appeal.  I therefore refuse his application for leave to appeal out of time, and dismiss his summons.