RE YUFIATUL RIZQI YUSUF AND ANOTHER

HCAL 215/2018

[2019] HKCFI 2195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 215 OF 2018

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DECISION

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1.  On 15 March 2019 I refused to grant leave to the applicants to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing their appeal regarding their non-refoulement claim upon finding none of the grounds put forward by them reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Board or in its decision, and that there was no reasonable prospect of success in their intended application.

2.  The applicants now by a summons dated 4 July 2019 seek leave to appeal against that decision out of time, as the 14-day period for them to file their appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 29 March 2019, and hence they were late by more than three months with their 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 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 more than three months must be considered as substantial or excessive, for which the 1^st applicant explained in her supporting affirmation that the decision was served on her on 15 March 2019 but she “didn’t get that letter on time”, and at the hearing of the summons she clarified that she did receive the decision on time, but as she was busy taking care of her blind husband and their children, and as she tended to forget things, she was therefore late with the intended appeal.  None of these can be accepted as valid excuse for not complying with the rules, and as such I do not find that the applicants have provided any good reason for their substantial delay.  

5.  More importantly, the applicants did not in their summons or affirmation provide any draft or proposed grounds of appeal, nor were they able to show any error in the decision or why it may be argued that the decision was unfair or unreasonable despite being invited to do so at the hearing of their summons.  In the absence of any reasonably arguable ground of appeal being put forward by the applicants, I am unable to see any prospect of success in their intended appeal. 

6.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  I therefore refuse their application for leave to appeal out of time, and accordingly the applicants’ summons is dismissed.