RE MOHAMED NASEER MOHAMED ASMI AND OTHERS

HCAL 1406/2018

[2021] HKCFI 3074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1406 OF 2018

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D E C I S I O N

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1.  The 1^st Applicant, by summons filed herein on 17 August 2021 applies for extension of time to appeal against the decision of Deputy High Court Judge C. P. Pang (“the Court”) given on 15 April 2021 refusing to grant leave to all four Applicants for judicial review of the decision of the Torture Claims Appeal Board in dismissing their appeal from the decision of the Director of Immigration regarding their non-refoulement claims.

2.  On the face of the above summons and affirmation of the 1^st Applicant in support, it would appear that this application for extension of time is made only by the 1^st Applicant.  In fact all the four Applicants constitute a family.  They were unrepresented before the Court and also in so far as this application is concerned.  However, as a family, it is inconceivable that this application for extension of time is made only by the 1^st Applicant but not also on behalf of the other family members.   I will therefore treat it as an oversight by the 1^st Applicant in the wording used for this summons and will deal with this matter as though the application for extension of time was made by all the four Applicants herein.

3.  The 14 day period for the Applicants to file their appeal against the decision of the Court ended on 29 April 2021.  Accordingly, they were over 3 months late with their intended appeal.

4.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, a 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.

5.  In the case of these four Applicants, this delay of over 3 months is not insignificant.  The 1^st Applicant stated in his affirmation in support that he did not receive the letter from the High Court, presumably meaning the letter containing the decision of the Court dated 15 April 2021, and he only came to know of the Court’s decision when his Immigration officer informed him of it.

6.  The court record shows that the decision of the Court was sent to all the four Applicants on the same day that the decision was made, namely, 15 April 2021, to the address given by the Applicant in paragraph 29 of his Non-refoulement Claim Form (NCF) when he was represented by the Duty Lawyer Service.  In his present summons, the 1^st Applicant gives an almost identical address except that instead of “Flat 1A” as stated in the NCF, the address given in his present summons uses “Block A1”. Accordingly, there would appear to be an anomaly between “Flat 1A” to which the letter by the court was sent and “Block A1” being the address given by the 1^st Applicant in his summons.  If such an anomaly exists, it is created by the 1^st Applicant himself.

7.  Moreover, the decision of the Court sent to all the four Applicants at the address given by the 1^st Applicant in the NCF was not returned to the court as being undelivered post.  Accordingly, I am unable to accept the explanation given by the 1^st Applicant that he did not receive the decision of the Court.

8.  In this present application for extension of time to appeal, no valid grounds of appeal has been put forth to show that there has been any error of law, procedural unfairness or irrationality in the decision by the Court in refusing leave to all the four Applicants.  The only matter stated by the 1^st Applicant in his affirmation in support was that he had not received the letter from High Court and so missed the 14 days deadline for appealing.

9.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held :

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

10.  This being an application for extension of time to appeal, it is for the Applicants to show that they have an arguable appeal.  This they have not done.

11.  Accordingly it would be futile to extend time for what would appear to be a hopeless appeal.  I therefore decline the application for extension of time to appeal against the decision of the Court and dismiss the summons.