RE FAHIM FIZA AND OTHERS

HCAL 1040/2017

[2019] HKCFI 1329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1040 OF 2017

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D E C I S I O N

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1.  On 31 August 2018 I refused to grant leave to the applicants to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) in dismissing their non-refoulement claim and subsequent appeal respectivelyupon finding none of the grounds put forward by the applicants as reasonably arguable or with any prospect of success in their intended application.

2.  The applicants now by a summons issued on 8 March 2019 seeks leave to appeal against that decision out of time, as the 14-day period for them to lodge their appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 14 September 2018, and hence they were late with their intended appeal by five months and three weeks.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

4.  In the applicants’ case a delay of more than five months must be regarded as substantial or excessive.  In her supporting affirmation of the same date also made on behalf of her children the 2^nd and 3^rd applicants, the 1^st applicant explained that the delay was due mainly to time spent for their application for legal aid for their intended appeal.

5.  The Court record shows that the applicants only applied for legal aid on 18 September 2018 which was already outside the 14-day period to file for appeal, and that their legal aid application was refused on 23 October 2018, which would still not explain why it had taken them a further four months until 8 March 2019 to issue their summons now before me.  In the circumstances I do not accept that the applicants have provided any good reason for their serious delay.

6.  Nor did they provide any draft or proposed ground for their appeal, or any particulars or elaboration as to any error in the decision or why it was unreasonable or unfair, and in the absence of which I am unable to see any reasonably arguable basis to challenge the decision or any prospect of success in their intended appeal.

7.  In the premises it would be futile to extend time for what appears to me a hopeless appeal.  Accordingly I refuse to extend time for their intended appeal, and dismiss their summons.