RE NANI NURNANI AND ANOTHER

HCAL 1443/2018

[2022] HKCFI 1499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1443 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 minor child 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 claim 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 21 October 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 almost 4 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 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 almost 4 weeks must be considered as substantial or inordinate, for which the 1^st Applicant explained at the hearing of their summons that they never received the decision in the mail, and it was later when they reported on their recognizance that they were informed by their immigration officer of the decision, but by then they were already out of time with their intended appeal. She did not provide any further details or evidence in support of her assertions.

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, and in the absence of any further or documentary evidence to corroborate their bare assertions, I am not convinced that the Applicants have provided any good reason for their serious delay.

6.  More importantly, nor have the Applicants 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, and at the hearing the 1^st Applicant just stated that her son, the 2^nd Applicant, is still attending school in Hong Kong and they therefore want to remain here for him to continue with his education. 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.