RE REKHI NAVDEEP SINGH AND OTHERS

HCAL 390/2018

[2019] HKCFI 2346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 390 OF 2018

_____________

_____________

_____________

DECISION

_____________

1.  On 17 May 2019 I refused to grant leave to the applicants to apply for judicial review of the decision of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing their non-refoulement claim upon finding 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 their process before 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 dated 15 July 2019 seek leave to appeal against that decision out of time, as the 14-day period for them to file their appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 31 May 2019, and hence they were late by 1 ½ months with their intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal 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 1 ½ months must be considered as significant or substantial, for which the 1^st applicant explained at the hearing of their summons that they never received the decision from the court and hence were not aware of it until they were informed by the Immigration Department when they reported on their recognizance, and that by then they were already out of time, and when he was confronted by the court’s record that the decision was posted to their last reported address on the same date, he clarified that they had moved to a new address without informing the court, but he also conceded that their move took place in late 2018 long before the court’s decision.  As such and in the absence of any other reliable evidence that they did not receive the decision, I am not satisfied that the applicants have provided any good or valid reason for their delay.  

5.  More importantly, they did not either in their summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and at the hearing when invited by the court to do so, they claimed that they needed more time, but without specifying how much more, to find a lawyer to assist them to prepare the grounds of appeal.  Given the fact that they already had a total of two months to get legal assistance if necessary, I do not find any justification for any further delay in the matter, and in the absence of any errors in the decision being clearly and properly identified by the applicants, I do not see any prospect of success in their intended appeal.

6.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse their application for leave to appeal out of time, and dismiss the applicants’ summons.