RE KULWINDER KAUR AND OTHERS

HCAL 2808/2018

[2021] HKCFI 3088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2808 OF 2018

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D E C I S I O N

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1.  The four Applicants, by summons dated 28 May 2021, apply for extension of time to appeal against the decision of Deputy High Court Judge To (“the Court”) given on 13 May 2021 refusing to grant leave to the Applicants for judicial review of the decision of the Torture Claims Appeal Board in dismissing their appeal from the decision of the Director of Immigration regarding their non-refoulement claim.

2.  Originally if all had gone smoothly, the 14 day period for the Applicants to file their appeal against the decision of the Court ought to have ended on 27 May 2021.  However, this was complicated by the fact that although the decision of the Court and the order was sent by the High Court to the Applicants on the same day the decision of the Court was made, it was sent by post to an incomplete address of the Applicant in that the words “Flat G” had not been put down as part of the address on the envelope.  As a result the envelope containing the decision of the Court was returned to the High Court as undelivered post and therefore did not reach the Applicants.

3.  On 21 May 2021, the High Court, after obtaining from Immigration Department the complete and correct address of the Applicants, re-sent the decision of the Court to the Applicants.

4.  As a result, the Applicants took our the present summons asking for extension of time to appeal the decision of the Court.  That summons dated 28 May 2021, was effectively one day after the 14 day period for the appeal if that 14 day period was counted from the date of the decision by the Court.

5.  I have some sympathy with the Applicants but I must still deal with the present summons for extension of time.

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, a 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 (v) the prejudice to the respondent if extension of time were granted.

7.  As for the prospect of the intended appeal, the Applicants have not put forward any proper or valid draft or proposed grounds of appeal.  The 1^st Applicant (the mother of the other 3 Applicants) have put in an affirmation in support which only explains the delay.  There is also a 3 page written submission by the 1^st Applicant further explaining the delay.  In paragraph 3 of that submission, the 1^st Applicant states that she had received the judgment of the Court late.  After she had received the judgment of the Court, she had asked around if there was any deadline in lodging an appeal and was told by a friend that she cannot go forward further.  Only later did she find out she could seek an appeal against the Court’s decision, but by then the deadline had passed.

8.  However, no draft or proposed grounds of appeal was given by the 1^st Applicant in her submission although she did say she can provide further grounds of appeal if the court requires.

9.  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].”

10.  This being an application to extend time for appealing against the decision of the Court, it is for the Applicants to show that there is a reasonably arguable appeal.  This they have not done.

11.  In the premises, and for the reasons given, it would be futile to extend time for what would appear to be a hopeless appeal.  Accordingly, I refuse the Applicants’ application for extension of time to appeal and dismiss the summons.