Re Ali Munsif and Others

HCAL 1627/2018

[2021] HKCFI 753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1627 OF 2018 

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Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Hearing: 4 March 2021

Date of Decision: 31 March 2021

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D E C I S I O N

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The application

1.The applicants are members of a family. The first and second applicants are husband and wife and the other applicants are their children. They jointly lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered the evidence, the Board, by its Decision dated 16 March 2017 (“the Board’s Decision”), rejected their appeal and affirmed the Director’s decision.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court, the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision. However, they were out of time and the Court had to consider whether time should be extended for them to file their application for judicial review. They had appeared before the Court. By Order dated 3 January 2020 (“the Court’s decision”), the Court refused to extend time for them to apply for leave to apply for judicial review of the Board’s Decision for the reason that there was no reasonable prospect of success in their intended judicial review.

3.The applicant intends to appeal to the Court of Appeal against the Court’s decision. However, they are out of time under Order 53, rule 3(4) of the Rules of the High Court. They filed a summons on 13 July 2020 for extension of time for their appeal.

4.They set out their grounds in support of this application as follows:

(1)  they did not know when their application was dismissed; and

(2)  they are lay persons and they do not know the procedures.

Discussion

5.In Re Adumekwe Rowland Ejike [2019] §19, the Court of Appeal held that in order to determine whether time should be extended for the applicant to appeal the Court’s decision refusing leave to apply for judicial review to the Court of Appeal, the prospect of success of the intended appeal is important and the court will not grant extension of time for a hopeless appeal to be pursued and the applicant has to identify any error on the part of the Judge in refusing to grant him leave to apply for judicial review [23]. The same rationale applies to this application.

6.The Court had in its decision, set out the reasons why it refused to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision. The applicants’ grounds in support of their application is that if the 1^st applicant returns to Pakistan with his family, they would be harmed or killed by the MQM party people because of a grudge between them. The Court affirmed the Board’s findings that the facts of their case did not support any of the risks they claimed; that the state was not involved in the case and internal relocation was an option open to them.

7.In view of the grounds raised by the applicants, the Court had set down a hearing on 4 March 2021 to hear their explanation for the delay and other grounds, if any, in support of their application.

8.However, the applicants were absent without any prior notice. To date, there is no explanation for their absence.

9.In the circumstances, I reject their grounds.

10.I find that the applicants are unable to show that they have any reasonable prospect of success in their intended appeal against the Court’s decision. I refuse to extend time for their appeal. Accordingly, I dismiss their application.

1^st to 4^th applicants in person, absent.