RE SAMAT SUMIT SINGH AND OTHERS

HCAL 464/2019

[2021] HKCFI 2146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 464 OF 2019

_____________

_____________

_____________

D E C I S I O N

_____________

The application

1.  This is the applicants’ joint application for extension of time to appeal against the Court’s decision as described below.

2.  The first applicant is the father, the second applicant is his wife and the third applicant is his son.  They had made a joint application for leave to apply for judicial review of the Decision dated 29 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

3.  The first and the second applicants are Indian nationals.  They came to Hong Kong as visitors, but they overstayed.  On 14 January 2014, they were arrested by police for overstaying.  On 2 March 2014, they were released on recognizance.  On 30 November 2014, the third applicant was born.  The first and the second applicants lodged their non-refoulement claims.  They lodged the non-refoulement claim on behalf of the third applicant on 15 May 2017.  Their applications were rejected by the Director of Immigration by Notice of Decision dated 18 August 2017.

4.  They jointly appealed to the Board. The Board refused their appeal.

5.   The applicants jointly filed Form 86 on 19 February 2019 for leave to apply for judicial review of the Board’s Decision.  The Court had not yet fixed a hearing date for their application.

6.  By their respective Affirmations dated 10 March 2020, the 1^st and 2^nd applicants jointly applied to the court to withdraw their joint application for the reason that they wanted to go back to their own country.

7.   In the circumstances, it was clear that the applicants had no intention of proceeding with their joint application, which should be dismissed.

8.  Accordingly, I acceded to their request and, by an Order dated 12 May 2020 (the “Court’s decision”) dismissed their joint application.

DISCUSSION

9.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicants’ reasons, I decide to determine this application without an oral hearing.

10.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

11.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

12.  The applicants have taken out a summons to apply for extension of time to appeal against the Court’s decision.  Their reason in support of their application is that because of Covid-19, they do not want to go back to India.

13.  Since the applicants had applied for withdrawal of their application and the application had been disposed of by way of the Court’s decision, I do not consider that they have a reasonable prospect of success in their intended appeal.

14.  Accordingly, I refuse to extend time for their appeal and I dismiss their application.