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HCAL 2455/2019 and HCAL 550/2023
(Heard together)
[2024] HKCFI 3348
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2455 OF 2019
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BETWEEN
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Compay Irene Navarro |
1st Applicant |
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Compay Francine Navarro |
2nd Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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AND
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 550 OF 2023
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BETWEEN
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Compay Irene Navarro |
1st Applicant |
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Khan Aqsha |
2nd Applicant |
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Khan Noraiz |
3rd Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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(Heard Together)
| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
5 December 2024 |
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D E C I S I O N
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The application
1. The 1st applicant is the mother and the guardian ad litem of the 2nd applicant, her daughter, aged 13, the 3rd applicant, her daughter, aged 4 and the 4th applicant, her son, aged 4 (“the children”).
2. The mother and the children lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered the evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.
3. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.
4. By Order dated 7 October 2024 (“the Court’s decision”), the Court dismissed their application for the reason that there was no realistic prospect of success in their intended application.
5. The Court’s decision was sent to the applicants on 7 October 2024 without being returned by the Post Office. They were deemed to receive the Court’s decision[1].
6. The deadline for them to file their notice of appeal is 21 October 2024[2].
7. In their summons filed on 22 October 2024, the applicants asked for extension of time to file their notice of appeal. In the mother’s affirmation in support of their application, the mother said she said:
“I’m late to appeal on time because my son was sick. I’m asking for extension of time.”
8. Their application for appeal is late for 1 day only.
Discussion
9. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].
10. Since the delay is only 1 day and the mother has given the reason that her child was sick, though there is no medical evidence in support of the mother’s assertion, I shall give the benefit of the doubt and extend time for the applicants to file the notice of appeal within 7 days from the date of this Order.
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(K.W. Lung)
Deputy High Court Judge
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The applicants were unrepresented.
[1] Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023
“17. … According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. …”
[2] Order 53, rule 3(4), RHC
“Where an application for leave is refused by a judge or is granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.”
(L.N. 152 of 2008; L.N. 122 of 2017)
Order 3, rule 2(2), RHC
“(1) Any period of time fixed by these rules or by any judgment, order or direction for doing any act shall be reckoned in accordance with the following provisions of this rule.
(2) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date. “Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.”
[3] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:
“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”
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