BISWAS NIKETA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1976/2018 and
HCAL 1977/2018

(Consolidated)

[2024] HKCFI 1814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1976 OF 2018 and NO 1977 OF 2018 (Consolidated)

_____________

_____________

(Consolidated pursuant to the Order of
Deputy High Court Judge Bruno Chan dated 23 April 2024)

_____________

D E C I S I O N

_____________

1.  On 23 April 2024, I refused to grant leave to the Applicants, who are sisters of an Indian family, to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their non-refoulement claims upon finding that 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 their joint screening 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 applications.

2.  The Applicants now by a summons issued by each on 29 May 2024 seek extension of time to appeal against that decision, as the 14-day period after the decision within which to file their appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 7 May 2024, and hence they were some 3 weeks late with their intended appeals.

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 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 3 weeks must be considered as significant and inordinate, for which they gave the same explanations (with the younger sister Niketa by her father as she is still a minor at the age of 16) at the hearing of their summonses that they were without legal representation and were not aware of the 14-day requirement for the filing of appeals, and that they do not know why they were late with the filing of their intended appeals.

5.  The court record shows that the decision was sent on the same day of 23 April 2024 to the Applicants’ last reported address where they were residing together with their parents and the same as stated in their present applications without being returned through undelivered post, while ignorance of the procedural requirements can never be accepted as a valid reason or justification for their non-compliance. In the circumstances, I am not satisfied that the Applicants have provided any good or valid reason for their significant delay.

6.  More importantly, the Applicants also 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 summonses or affirmations, nor were they able to do so at the hearing other than the fact that they have been living in Hong Kong for years that they would like to continue to do so. 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 appeals.

7.  I am of course mindful of the fact that the younger sister Niketa as noted above is still a minor who appeared with her father but is without legal representation as required by Order 80 rule 2 of the Rules of the High Court, but for the same reasons as elaborated in my decision of 23 April 2024, I shall treat her lack of legal representation in this application as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended appeal.

8.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be hopeless appeals by the Applicants. Accordingly, I refuse their applications for extension of time to appeal, and dismiss their summonses.