RE ALAYA JAKIR ANAS POOL

HCAL 865/2017

[2020] HKCFI 205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 865 OF 2017

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D E C I S I O N

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1.  On 13 February 2019 I refused to grant leave to the Applicants (mother and minor daughter) to apply for judicial review of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing 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 their process before 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 11 October 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 High Court, Cap. 4A ended on 27 February 2019, and hence they were late by more than 6 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 6 months must be considered as very substantial, for which the 1^st Applicant explained in her affirmation and at the hearing of the summons that due to her language problem, she was unable to find someone willing and able to explain the decision to her and to prepare the necessary application to appeal for her until much later when she was way out of time to appeal.

5.  Whilst what she said may well be true, and language problems are common amongst asylum seekers, such problems per se cannot be accepted as valid or good reasons for such serious failure to comply with the rules.  In the circumstances I do not accept the Applicants’ explanation for their delay.       

6.  More importantly, nor did they in their summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and when the 1^st Applicant was invited to do so at the hearing, she merely asked that she be allowed to remain in Hong Kong to look after her daughter.  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, 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.