RE GIRI ANUP KUMAR AND OTHERS

HCAL 1437/2018 and
HCAL 1878/2020
(Consolidated)

[2022] HKCFI 2731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS 1437 OF 2018 AND 1878 OF 2020

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(Consolidated pursuant to the Order of

Deputy High Court Judge Bruno Chan dated 22 December 2021)

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D E C I S I O N

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1.  On 22 December 2021 I refused to grant leave to the applicants, an unmarried couple from India and their minor son born thereafter in Hong Kong, to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their appeal/petition regarding their non-refoulement claims upon finding that none of their proposed grounds were reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in their intended applications.

2.  The applicants now by a summons issued on 10 January 2022 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 the High Court, Cap 4A ended on 5 January 2022, and hence they were 5 days 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 5 days may not be considered as significant, for which the 1^st and 2^nd applicants explained in their joint affirmation that they “did not get the order on time” without providing any further details or clarification as to when exactly did they receive the decision.

5.  The court record shows that the decision was sent on the same day to the applicants’ last reported address without being returned through undelivered post, and in the absence of any further details or evidence to corroborate their bare assertion, such as when exactly did they receive the decision or any documentary evidence such as the envelope which contained the decision to show its actual postdate, and as they also failed to attend the hearing of their summons without explanation, I am not satisfied that the applicants have provided a good or valid reason for their delay, but given its relative insignificance, I propose to focus on the prospect of their intended appeal.

6.  However, the applicants have also 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 affirmation, and as noted they also failed to attend the hearing of their summons without any explanation. 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.