RE PEPITO JENETH TANURA AND OTHERS

HCAL 1027/2017

[2018] HKCFI 2381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1027 OF 2017

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D E C I S I O N

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1.  On 7 September 2018 I refused to extend time for the applicants’ late filing of their application for leave to apply for judicial review of both the decisions of the Director and the Board for rejecting their non-refoulement claims, having found no explanation from them for their delay of more thantwo months nor any merits in their intended challenge, and in the absence of any good reason to extend time I accordingly dismissed their application.

2.  The applicants now by a summons issued on 21 September 2018apply for leave to appeal against that decision under Order 59, rule 2B(1) of the Rules of the High Court, Cap 4A, and in the written submission of the same date of the 1^stapplicant also made on behalf of her two daughters the 2^nd and 3^rdapplicants, the 1^stapplicant did not produce any draft grounds of appeal, and merely put forward explanations as to why she was late then in bringing her application for judicial review, of which she did not do at that time as noted in my decision but which she now seeks to explain as follows:

“ 3. I was not aware of the time limit. I have never been involved in any court proceedings in my entire life.

4. I was not made aware of the time limit earlier because I did not receive the decision from the Torture Claims Appeal Board by post.  As a matter of fact, I still went to report myself at the Immigration Centre regularly but was never told that a decision was issued against me.  It was only until much later that the Immigration officer alerted me that there was a decision and I approached the Board to obtain a copy.

5. I had to take care of my two daughters full time and I was struggling myself both financially emotionally and physically.  I did not understand what was in the Determination and I had to ask around for help, but I had very limited time in actually asking around given the time and energy spent on taking care of my daughters.

6. There was no guideline in the Determination that provided the next available revenue of appeal.  Furthermore, as I have complained earlier, there has been a lack of legal and language assistance throughout the case and I could not have understood the content of the Determination and would not have known how to initiate court proceedings.”

3.  While one may be sympathetic with the 1^st applicant’s plight, ignorance of the law or the rules, or being too busily occupied with one’s ownjob or chores, or as in the 1^st applicant’s case having to take care of her smallchildren, can never be accepted as valid explanations for failing to make the application within the time stipulated by the rules, and the 3-month period for application for judicial review when compared with those for most otherapplications must be considered as reasonably sufficient for applicants under all type of difficult situations, and had these explanations been proffered by the 1^stapplicants for her delay at the time of her application for judicial review, they would still be considered as unacceptable.

4.  Furthermore, as explained in my decision, I refused to extend time to the applicants because I did not find any merits or basis in any of the grounds for their intended application and concluded that they are not reasonably arguable and hence in the absence of any good reason to extend time, I dismissed their late application for judicial review.

5.  As for the rest of the 1^st applicant’s submission, she merely repeated those same grounds as in her application for judicial review, namely lack of language and legal assistance in her appeal before the Board which in my judgment did not advance any arguments against those reasons and analysis set out in my decision.  In substance she is trying to argue the matter afresh which is not a course open to an application on appeal: see Re Litoun Mounsy [2018] HKCA 537; and Re Nupur Mst [2018] HKCA 524.

6.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended appeal, and I accordingly refuse their leave application.