RE JIM BAHADUR GARBUJA AND ANOTHER

HCAL 2001/2018

[2020] HKCFI 2852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2001 OF 2018 

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D E C I S I O N

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1.  On 21 September 2020 I refused to grant leave to the Applicants to apply for judicial review of the decisions 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 the 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 6 October 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 ended on 5 October 2020, and hence they were late by 1 day 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 1 day cannot on any view be considered as significant, for which they explained in their affirmation that they never received the decision in the mail, and only learnt about it when they made their regular report to the Immigration Department.

5.  Given the impact of the current Covid-19 pandemic on the general postal service and also on the High Court Registry with reduced operation hours and restricted people flow at the material time, I am satisfied that there are justifications for the Applicants’ insignificant delay and to extend time for them to file their appeal.

6.  In the premises, and in view of the current public health situation, I propose to deal with the matter on paper, and accordingly grant the Applicants an extension of time to file their notice of appeal within 14 days of this order.