MD MONIR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

HCAL 1068/2017

[2019] HKCFI 822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1068 OF 2017

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D E C I S I O N

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1.  On 3 August 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/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 30 January 2019 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 HighCourt, Cap 4A ended on 17 August 2018, and hence he was late by more than four months with his appeal even after taking into account of the fact that time for service of the appeal did not run in the summer vacation in August 2018.

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 more than four months must be regarded as substantial or excessive.  In his supporting affirmation of the same date he explained that he did not receive any letter from the Court and hence was not aware of the decision, and at the hearing of his summons he further clarified that it was not until much later when he reported on his recognizance when he was informed by the Immigration Department of the decision, and so by that time he was already way out of time to lodge his appeal.  He however also confirmed that he had not changed his address at all material times, and the Court’s record shows that the decision was sent to him on the same date to his reported address and had not been returned.  In the premises I am not satisfied that he has provided any good reason for his substantial delay.

5.  Nor did he provide any draft or proposed ground for his appeal, or any particulars as to any error in the decision or why it was unfair or unreasonable, and at the hearing he conceded that there is no error in the Court’s decision but as he still has problems in his home country, he just wanted the Court to review his application, which is of course not a valid ground to appeal.  As such I do not see any prospect of success in his intended appeal.

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