RE CORDOVAL MYRNA BENIASEN AND ANOTHER

HCAL 265/2018

[2020] HKCFI 2156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 265 OF 2018

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D E C I S I O N

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1.  On 23 July 2020 I refused to extend time for the Applicants to file their late application for leave 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 that there was no good reason for their more than 4 months’ delay with their application, 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 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 4 August 2020 seek leave to appeal against that decision, as although they were then within the 14-day period required by Order 53 rule 3(4) of the Rules of the High Court, Cap 4A (“RHC”) to file their appeal, that decision was then regarded as interlocutory to which section 14AA(1) of the High Court Ordinance, Cap 4 (“HCO”) would apply in that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted, the Applicants were therefore required by the registry to first issue their summons to seek leave to do so.    

3.  However, the Court of Final Appeal has since held in the cases of H v Director of Immigration and AH v Director of Immigration, FACV 1 & 2 of 2020, [2020] HKCFA 22, 14 July 2020, that the refusal of an extension of time which leads inexorably to a decision to refuse leave to apply for judicial review is a decision that falls within the terms of Order 59 rule 21(1)(g) of RHC, to which section 14AA(1) of HCO does not apply and from which an appeal lies as of right.

4.  Henceforth, and as they were then within the 14-day period under Order 53 rule 3(4) of the RHC, the Applicants would not have been late with their appeal had they been allowed to file it on 4 August 2020 when they were instead required to issue their summons.

5.  Accordingly, and in view of the current public health situation due to the Covid-19 pandemic, I propose to deal with the matter on paper, and extend time for the Applicants to file their notice of appeal within 14 days of this order.