RE LUSY MERI MARIA BERTOLES AND OTHERS

HCAL 1445/2018

[2021] HKCFI 2720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1445 OF 2018

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D E C I S I O N

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1.  On 26 May 2021 I refused to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing their appeal/petition regarding their non-refoulement claim 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 the 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 application.

2.  The Applicants now by a summons issued on 15 June 2021 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 ended on 9 June 2021, and hence they were 6 days late 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 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 The 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 6 days may not be considered as significant, for which they did not provide any explanation in their summons or supporting affidavit, nor did they attend the hearing so as to provide any explanation.

5.  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, and in the absence of any explanation from the Applicants, I do not see any good reason for their delay, but given its relatively insignificance, I propose to focus on the prospect of their intended appeal.

6.  However, the Applicants have not 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 summons or affidavit, and as noted above nor did they attend the hearing of their summons. 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, and for the reasons given, 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.