RE JASVIR SINGH AND OTHERS

HCAL 871/2018

[2020] HKCFI 1156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 871 OF 2018

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D E C I S I O N

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1.  On 18 November 2019 I refused to grant leave to the Applicants, a married couple and their minor son, to apply for judicial review of the decision of the Director of Immigration (“the Director”) and 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 2^nd Applicant now by a summons issued on 27 December 2019 seeks leave for herself and the 3^rd Applicant to appeal against that decision out of time, 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 2 December 2019, and hence they were late by 25 days 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 25 days may not be considered as insignificant, for which the 2^nd Applicant explained in her affirmation and at the hearing that, firstly, her husband ie the 1^st Applicant had passed away in June 2019 and hence the present application is made only for herself and the 3^rd Applicant, and secondly, given the fact that it was all along her husband who was responsible for making all the necessary steps and measures in their non-refoulement claim, and hence after his death she was busy with his funeral, and did not know how or what to do with the legal process of their claim until later with the help of her friends that she was able to proceed with her present application.  In the circumstances and given her delay was not substantial, I propose to focus on the merit or prospect of the intended appeal.

5.  However, she did not in her 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 in her affirmation as well as at the hearing she conceded that her case relies primarily on her husband’s claim, which was based on a land dispute in their home village in India between her husband and his uncles, but she claimed at the hearing that the problem still exists without providing any further information or evidence.  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. 

6.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly, I refuse the 2^nd Applicant’ s application for extension of time to appeal, and dismiss her summons.