Re Mangal Singh and Others

HCAL 341/2018

[2019] HKCFI 2345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 341 OF 2018

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DECISION

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1.On 24 May 2019 I refused to grant leave to the applicants 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 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 Board or in its decision, and that there was no reasonable prospect of success in their intended application.

2.The applicants now by a summons dated 24 June 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 7 June 2019, and hence they were late by more than two weeks 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 two weeks may not be considered as substantial or excessive, for which the 1^st applicant explained in his supporting affirmation that the decision was indeed sent to him on time, but somehow he missed it despite having checked his letter box almost every day.  As such I do not accept that the applicants have provided any good or valid reason for their delay.

5.More importantly, the applicants did not either in their summons or affirmation provide any draft or proposed grounds of appeal, or suggest any error in the decision or why it may be argued that the decision was unfair or unreasonable, nor did they attend the hearing of their summons without any explanation.  In the absence of any reasonably arguable ground of appeal being put forward by the applicants, I am unable to 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.  I therefore refuse their application for leaveto appeal out of time, and accordingly the applicants’ summons is dismissed.

The 1^st to 5^th applicants were not represented and did not appear