RE LILI LESTARI AND ANOTHER

HCAL 545/2018

[2020] HKCFI 2898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 545 OF 2018

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DECISION

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1.  On 30 June 2020 I struck out and dismissed the application of the Applicants (mother and daughter) 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 claim upon finding that it was their second such application after their earlier one against the same decision of the Board had been refused by another court, that the principle of res judicata applied to their second such application, and that it was an abuse of process for them to re-litigate their case by bringing a second judicial review in respect of the same decision of the Board after they failed to obtain leave from the court in their first application.

2.  The Applicants now by a summons issued on 27 July 2020 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 14 July 2020, and hence they were late by 13 days 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 13 days may not be considered as insignificant, for which the 1^st Applicant explained at the hearing of their summons that they received the decision late when by then they were already out of time, but she was unable to remember exactly when the decision arrived in the mail, nor did she produce any documentary evidence such as the envelop which contained the decision with the post mark showing the date when it was dispatched, and as the court record shows that the decision was actually sent out on the same day by post to the Applicants’ last reported address, I am not satisfied that the Applicants have shown any good reason for their delay.    

5.  More importantly, nor did they put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in their summons or affirmation, and at the hearing the 1^st Applicant merely repeated their claim that they cannot return to their home country as their problem is there.  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.     

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 extension of time to appeal, and dismiss their summons.