RE BEGUM MST SINTHIA AND ANOTHER

HCAL 651/2018

[2020] HKCFI 515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 651 OF 2018

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D E C I S I O N

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1.  On 28 June 2019 I refused to grant leave to the Applicants (mother and her minor daughter) 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 as reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration 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 28 November 2019 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 12 July 2019, and hence they were late by 3 ½ months with their intended appeal after discounting the month of August for the court’s summer vacation. 

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 3 ½ months must be considered as substantial, for which the 1^st Applicant explained at the hearing of the summons that she never received the decision from the court in the mail and was only told about it sometime in November 2019 when she reported to the Immigration Department, and hence by then she was already way out of time with the intended appeal.

5.  The court record however reveals that the decision was sent on the same day of 28 June 2019 by post to the Applicants’ last reported address, of which the 1^st Applicant confirmed at the hearing as correct, and that it has never been returned through undelivered mail, and hence in the absence of any further corroborating evidence from the Applicants, I am not satisfied that they have provided a valid or good reason for their serious 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 at the hearing of their summons the 1^st Applicant merely repeated her claim of risk of harms in her home country and requested to be allowed to remain in Hong Kong.  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.