RE MUHAMMAD SHEHBAZ

HCAL 750/2017

[2019] HKCFI 2381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 750 OF 2017

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DECISION

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1.  On 28 June 2018 Deputy High Court Judge Josiah Lam refusedto grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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/Board or its decision, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 8 August 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 2018, and hence he was late by more than one year 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 one year must be considered as very substantial or excessive, for which he explained that as he was not aware of the law requiring to file his appeal within 14 days, and that he had at that time been in prison for burglary for 13 months, and thereafter was detained at the Castle Peak Bay Immigration Centre (“CIC”), hence he was unable to file his notice of appeal until he was way out of time.

5.  He however did not provide any further particulars or supporting documentary evidence as to exactly when he was imprisoned for burglary or detained at CIC, as he was still able to attend before the learned judge on 3 May 2018, but between then and the deadline for him to file his notice of appeal on 12 July 2018, which was just over a period of less than 10 weeks, that there is no evidence from him as to whether he was by then already imprisoned.  As such I am not satisfied that he has provided any good reason for his very 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 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.