RE SINGH GURWINDER AND OTHERS

HCAL 2013/2018

[2022] HKCFI 1185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2013 OF 2018

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D E C I S I O N

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1.  On 24 August 2021 I refused to extend time to the Applicants’ seriously late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their appeal/petition regarding their non-refoulement claims upon finding that there was no good reason for their serious delay of more than 6 weeks, that none of their proposed grounds were reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in their intended application.

2.  The Applicants now by a summons issued on 5 October 2021 seek extension of time to appeal against that decision, as the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of High Court, Cap. 4A ended on 7 September 2021, and hence they were 4 weeks late with their 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 Applicants’ case, a delay of 4 weeks must be considered as substantial or inordinate, for which the 2^nd Applicant at the hearing of the summons explained on their behalf that they changed their residential address sometime in March 2021 but did not report their new address to the Court and hence never received the decision in the mail, and it was later when they were informed by their immigration officer that they became aware of the decision, but by then they were already out of time with their intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicants’ last reported address without being returned through undelivered post, and if indeed they had moved to a new address but without informing the Court and hence did not receive the decision in the mail, then they have only themselves to blame as all asylum seekers have repeatedly been reminded by their immigration officers of their duty to inform the authorities of any change to their residential or correspondence address throughout the entire process of their applications. In the circumstances I am not satisfied that the Applicants have in their case provided a good reason for their serious delay.

6.  More importantly, the Applicants have failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in their summons or supporting affirmation, and at the hearing they could only repeat their claim as before that their life would still be in danger in their home country. As such and in the absence of any error in the decision being clearly and properly identified by the Applicants, I do not see any prospect of success in their intended appeal.

7.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse their application for extension of time to appeal, and dismiss their summons.