RE LILIK SUMRIYAH AND OTHERS

HCAL 920/2018

[2021] HKCFI 3588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 920 OF 2018

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D E C I S I O N

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1.  On 27 April 2021 I refused to extend time to the Applicants’ late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing their appeal regarding their non-refoulement claims upon finding that there was no good reason for their serious delay, 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 (“the 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 22 July 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 had expired on 11 May 2021, 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 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 more than 10 weeks must be considered as very substantial and inordinate, for which the 1^st Applicant explained at the hearing of their summons that she only received the decision late as it was sent to her previous address from which they had moved since December 2020 to a new address but which she had only informed the Immigration Department but not the Court, and hence by the time she was able to retrieve the decision, they were already out of time with their intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicants’ previously reported address but had subsequently been returned through undelivered post, and upon obtaining their latest address from the Immigration Department which is the same as the one now stated in their present application, the decision was resent to the Applicants at that address on 21 June 2021 which would give them up to 5 July 2021 at the latest to file their appeal, and that means that they would still be some 2 weeks late with their intended appeal, and taking into account of the fact that it was the Applicants who failed to inform all the relevant authorities of the change to their address which would include the Court for obvious reason, and hence they would have only themselves to blame for the resultant delay. In the circumstances I am not satisfied that the Applicants have provided a good reason for their significant delay.

6.  More importantly, 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 supporting affirmation, and at the hearing of their summons the 1^st Applicant merely repeated their claim as before that their lives would still be in danger in their home country. 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.