QASIM NADEEM v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER [Decision on Leave Application]

HCAL 715/2018

[2019] HKCFI 2429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 715 OF 2018

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DECISION

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1.  On 5 July 2019 I refused to 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 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 dated 22 July 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 three days 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 AppealPanel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director ofImmigration 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 three days cannot be said to be significant, for which he explained at the hearing that as 19 July 2019 was a Friday, and when he was unable to meet that deadline, he had to wait until the following Monday which was 22 July 2019 to do so and hence his delay.  As such and as the delay was not significant, I propose to focus on the prospect of his intended appeal.  

5.  However, he did not in his summons or his 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 being shown by the Applicant, I do not see any arguable basis to challenge the decision or any prospect of success in his intended appeal. 

6.  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.