RE BANGASH SHMAS UR REHMAN

HCAL 179/2018

[2019] HKCFI 2726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 179 OF 2018

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DECISION

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1.  On 21 December 2018 I 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 against the Director’s decision not to re-open 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 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 13 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 4 January 2019, and hence he was late by more than seven 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 seven months must be considered as very substantial or excessive, for which he explained at the hearing of his summons that at that time he was being detained at Lai Chi Kok Detention Centre and later at the Castle Peak Bay Immigration Centre for various criminal offences, and was therefore unable to file his appeal until his release when by then he was already way out of time.

5.  Whether it was indeed the case as claimed by the Applicant, and he has not provided any further details or documentary evidence in support,it is clear from the Board’s decision ([27] – [64]) that in the past when the Applicant was being detained for various offences, he was able to regularly write to the Director in respect of his claim without any problem or difficulty. While accepting that there would always be various restrictions in detention which may contribute to certain delays, but in the circumstances of the Applicant’s case, I am not satisfied that these were good or valid reason for his such 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, nor was he able to do so at the hearing when he simply claimed to have scars on his body to show that he had been ill-treated back home in Pakistan.  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.