RE ABBAS SHEIKH ANSAR

HCAL 2110/2018

[2021] HKCFI 4

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2110 OF 2018

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D E C I S I O N

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1.  On 19 August 2020 I refused to grant leave to the Applicant to apply for judicial review of the decisions 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 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 11 September 2020 seeks extension of time to appeal against that decision, 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 2 September 2020, and hence he was late by 9 days 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 9 days may not be considered as significant, for which he explained at the hearing of his summons that he received the decision late on or about 9^th or 10^th of September 2020 when by then he was already out of time.

5.  The Applicant however did not produce the letter containing the decision showing the post mark of the date when it was mailed, of which the court record however shows that the decision was sent on the same day to his last reported address, in which case under normal circumstances it should not have reached the Applicant as late as alleged. Nevertheless, given the insignificance of the delay, I propose to focus on the prospect of success of his intended appeal.

6.  In his summons the Applicant attached the following statement which I took as his proposed reasons or grounds of his appeal:

“Judge of the High Court refused my leave to apply for judicial review but I do not agree with him. He could not show any good cause to refuse my leave. He only wrote the Adjudicator and Director did not make any error of law or procedure, on the law or on the process. They made error or not this is a argument subject but on the merit they did not consider at all. If Judge say I do not want to see merit then who can give justice?”

7.  Given clearly from the principles regarding appeals on non-refoulement claims as set out in Nupur Mst v Director of Immigration [2018] HKCA 524 that the assessment of, inter alia, merit of such claims is primarily within the province of the Director and the Board as the primary decision-makers and not the role of the court in a judicial review, and that the court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decisions of the Director or the Board, of which it is for the claimant in his or her intended appeal to identify by way of proper grounds of appeal with relevant particulars and elaborations stated in the summons or supporting affirmation.  

8.  In the Applicant’s case, it is clear from the above that he has failed to do so in any proper draft or proposed grounds of appeal, or to provide any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation, and at the hearing of his summons he merely repeated his claim that his life would still be in danger in 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.

9.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.