RE GILL AMRIK SINGH AND OTHERS

HCAL 296/2018

[2021] HKCFI 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 296 OF 2018

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D E C I S I O N

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1.  On 16 July 2020 I refused to extend time to the late application of the applicants (a married couple from India and their two minor children) 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 there was no good reason for their delay, 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 16 September 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 expired on 30 July 2020, and hence they were late by more than 6 weeks 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 more than 6 weeks must be considered as significant or substantial, for which the 1^st and 2^nd applicants explained in their affirmation that they received the decision late on 20 August 2020, but at the hearing of the summons the 2^nd applicant gave a somewhat different version in that after receiving the decision in the mail, they did not know how to appeal until they sometime in September 2020 when they reported on their recognizance at the Immigration Department that they were so advised by their immigration officer, but that by then they were already out of time with the intended appeal.

5.  The court record however shows that the decision was sent on the same day to the applicants’ last reported address which is the same as stated in their present application without being returned through undelivered post, and ignorance of the law can never be accepted as any valid excuse for its non-compliance. As such and in the absence of any corroborating or documentary evidence in support of their bare assertions, I am not satisfied that the applicants have shown any good reason for their delay.          

6.  More importantly, nor did they put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in their summons, while in their affirmation in which they purportedly attached their “Grounds on which relief is sought”, they merely repeated their claim that their life would still be in danger in India and that there are many meritorious grounds of appeal but without providing any particulars or elaborations of what they are, and at the hearing of the summons the 2^nd applicant again just repeated their claim without putting forth any proper grounds of appeal.

7.  In considering the prospect of their intended appeal, I am mindful of the fact that the 3^rd and 4^th applicants, both minors now at the age of 16 and 9 respectively, were not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, but they as well as their parents were represented by their lawyer from Duty Lawyer Service in their appeal before the Board and with submissions being made on their behalf for their appeal, and as I do not find any material that may give rise to any concern of any non-refoulement grounds which may relate specifically to either of them that had not been advanced to the Board by their lawyer in their appeal, 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.       

8.  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.