Re Khanam Masuma and Another

HCAL 523/2018

[2019] HKCFI 2496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 523 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 24 September 2019

Date of Decision: 4 November 2019

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DECISION

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1.On 10 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 non-refoulement claim upon finding none of the grounds put forward by them as reasonably arguable for their intended challenge, that there was no error of law or procedural unfairness in their 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 issued on 16 August 2019 seek leave to appeal against that decision out of time, as the 14-day period for them to file their notice of appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 24 May 2019, and hence they were late by more than two 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 two months cannot be regarded as insignificant, for which the 1^st Applicant explained that upon receiving the decision, as she does not read English, she did not know or understand what it was until later in August 2019 when she reported to the Immigration Department that she was informed and explained the contents of the decision, and that it took time to find someone to help her with the preparation of her application that she therefore became late with the intended appeal.

5.Even accepting that she may not have fully understood what the decision was about, the fact is that the 1^st Applicant was required to report to the Immigration Department every week or every other week, it is not acceptable that she had waited for more than two months until August 2019 to seek help about the decision, and as such I am not satisfied that the Applicants have provided any valid reason for their delay.

6.More importantly, nor did they 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 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, 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 their summons.

The 1^st applicant appeared in person.

The 2^nd applicant was not represented and did not appear.