RE CARAMAT VIRGINIA LOBEBAN AND OTHERS

HCAL 745/2017

[2019] HKCFI 2380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 745 OF 2017

_____________

_____________

________________________

DECISION

________________________

1.  On 23 August 2018 Deputy High Court Judge Josiah Lam refused to grant leave to the Applicants to apply for judicial review of the decision of the Director of Immigration (“the Director”) or 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 the 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 2 August 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 14 September 2018 after taking into account the intervening summer vacation, and hence they were late by more than 10 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 more than 10 months must be considered as very substantial and excessive, for which the 1^st Applicant who spoke on behalf of the other applicants being her minor children explained that as she was not aware of the law and was only told by the Immigration Department which by then they were already way out of time to appeal.  Ignorance of the law of course can never be accepted as a valid excuse or reason for failing to comply with statutory time requirements, and as such I do not accept that the Applicants have provided any good reason for their serious delay.    

5.  More importantly, nor did they in the summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision of the Director or the Board, or why it may be argued that their decisions were wrong or unreasonable, and in the absence of any error of law or procedural unfairness in the process before the Immigration Department or the Board or in their decisions 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.