RE NDUK NING AND ANOTHER

HCAL 1991/2018

[2021] HKCFI 12

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1991 OF 2018

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D E C I S I O N

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1.  On 19 August 2020 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 irrationality or procedural unfairness in the process before the Director of Immigration (“the 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 21 September 2020 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 expired on 2 September 2020, and hence they were late by 19 days 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 19 days may not be considered as insignificant, for which the 1^st Applicant explained at the hearing of their summons that they received the decision late but without providing any further details as to exactly when they actually received the decision or any documentary evidence such as the envelop which contained the decision showing the actual postmark to corroborate their assertion, and as 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, I am not satisfied that there is any good or valid reason for their delay.     

5.  More importantly, nor did the Applicants put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in their summons, while in their affirmation they merely repeated their vague and broad complaints against the Director and the Board for failing to consider their claim properly without providing any proper details or particulars or elaboration and which were all rejected in my decision, and at the hearing the 1^st Applicant merely repeated their claim that their problem in their home country has not been solved and hence they cannot go home. 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.

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