IDA NENGSIH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 414/2022

[2024] HKCFI 1757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 414 OF 2022

_____________

_____________

_____________

D E C I S I O N

_____________

1.  On 27 February 2024 I refused to grant leave to the Applicants to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their non-refoulement claims upon finding 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 (“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 24 May 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file their appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 12 March 2024, and hence they were more than 10 weeks 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 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 10 weeks must be considered as substantial and inordinate, for which the 1^st Applicant explained in her supporting affirmation on their behalves that they never received the decision in the mail but without any further relevant details in support.

5.  The court record shows that the decision was sent on the same day of 27 February 2024 to the Applicants’ last reported address, which is the same as that stated in their present application, without being returned through undelivered post, and in the absence of any further details or reliable evidence to corroborate their barest of assertion, and as they also failed to attend the hearing of their summons without explanation, I am not satisfied that the Applicants have provided any good or valid reason for their serious delay.

6.  More importantly, the Applicants also 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 supporting affirmation, and as noted above that they also failed to attend the hearing of their summons without 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 by the Applicants. Accordingly, I refuse their application for extension of time to appeal, and dismiss their summons.