RE KAMARA ALPHA IBRAHIM BUBA

HCAL 507/2018

[2020] HKCFI 55

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 507 OF 2018

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DECISION

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1.  On 5 July 2019 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) in rejecting his non-refoulement claim upon finding that he had no good reason for his serious delay of more than nine months 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 October 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 19 July 2019, and hence he was late by about two months with his intended appeal after discounting the month of August 2019 for the Court’s summer vacation. 

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 two months must be considered as significant or substantial, for which he explained at the hearing that as he had earlier been sent to prison for the offence of drug trafficking, he never received the decision from the court until his release from prison, and that he only learnt of it when he subsequently reported to the Immigration Department in October 2019 that by then he was already out of time to appeal.

5.  The Applicant however did not provide any further details such as the date when he was released from prison or the address where he was then residing, and as the record shows that he was convicted of the offence of drug trafficking in July 2015 and was imprisoned for 50 months, he should have been released from prison by the time when the decision was delivered, and if he had changed his address, it was his responsibility to inform the authorities as well as the court, and hence he had only himself to blame for his failure to inform the court of his new address if the decision was sent to his former address.  In the circumstances I am not satisfied that he has provided any good reason for his delay.

6.  In any event, given that the decision was interlocutory in nature:see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, and section 14AA of the High Court Ordinance, Cap 4 provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted.

7.  In considering whether to grant leave to appeal, section 14AA(4) of the Ordinance provides that leave shall not be granted unless the Court hearing the application for leave is satisfied that:

(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard.

8.  The threshold test for reasonable prospect of success was stated by Hon Le Pichon JA in SMSE v KL [2009] 4 HKLRD 125 at [17]:

“ The section requires that the court be satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard before granting leave. Reasonable prospects of success involves the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

9.  In the present case, the Applicant did not in his summons 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, while in his supporting affirmation he merely claimed that the decision was unfair without allowing him an opportunity to clarify his case and situation in his home country, but he again did not provide any particulars or elaboration as to why it was so, or what was it that he wants to clarify his case or the situation in his home country, nor did he do so at the hearing of his summons. 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, nor is there some other reason in the interests of justice why the appeal should be heard. 

10.  In the premises, it would be futile to extend time or to grant leave for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal, and dismiss his summons.