RE NUR ANI HIDAYATI AND OTHERS

HCAL 1886/2018

[2022] HKCFI 1500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1886 OF 2018

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D E C I S I O N

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1.  On 10 September 2021 I refused to grant leave to the Applicants, a mother from Indonesia and her 3 minor children born in Hong Kong, to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their appeal/petition regarding their non-refoulement claims upon finding that none of their proposed grounds were reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) 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 28 September 2021 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 ended on 24 September 2021, and hence they were 4 days late 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 4 days may not be regarded as significant, for which the 1^st Applicant explained in her affirmation that she only received the decision late in the mail, and as she was not aware of the law and did not know how to appeal and had had to seek help from her friends to help her with the legal documents, but by the time they were ready to proceed with their intended appeal, they were already out of time.

5.  The court record shows that the decision was sent on the same day to the Applicants’ last reported address without being returned through undelivered post, but given that they were unrepresented and the relatively insignificant delay, I propose to focus on the prospect of their intended appeal.

6.  However, the Applicants have failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in their summons or affirmation, nor did any of them attend the hearing of their summons without any explanation. 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.

7.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse their application for extension of time to appeal, and dismiss their summons.