Re Sumyatun and Another

HCAL 1210/2018

[2021] HKCFI 2451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1210 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 17 August 2021

Date of Decision: 31 August 2021

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D E C I S I O N

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1.On 30 June 2021 I refused to extend time to the late application of the applicants to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing their appeal regarding their non-refoulement claim upon finding that there was no good reason for their serious delay, that 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 their 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 application.

2.The applicants now by a summons issued on 9 July 2021 seeks extension of time to appeal against that decision, notwithstanding the fact that the 14-day period for them to file their appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A had then not expired until 14 July 2021, and hence they were then not late with their intended appeal, but somehow the Registry accepted their summons, and by the time they appeared before me for the hearing of their summons, they were indeed out of time 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.At the hearing of their summons, the 1^st applicant explained that since they were unrepresented and were ignorant of the law, they therefore sought advice from their friends about their intended appeal, and were told that they had to apply to the court for permission to do so, and so they issued their summons accordingly on 9 July 2021.  

5.It is not clear why their summons was allowed to be issued by the Registry, or whether they had been advised to instead simply just file their notice of appeal within the remaining time, but the fact remains that by now they are indeed out of time with their intended appeal, and while one may be sympathetic with their situation, in the exercise of the court’s discretion whether to extend time, it would still be necessary to consider the merits or prospect of their intended appeal, as it would certainly not be appropriate to grant indulgence to one that is hopeless or would be a waste of the court’s time and resources.

6.However, for their intended appeal, the applicants did not 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 be reasonably arguable that the decision was unfair or unreasonable either in their summons or in the affirmation, and at the hearing the 1^st applicant simply just repeated their claim that their lives would still be in danger if refouled to their home country. 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. Accordingly, I refuse their application for extension of time to appeal, and dismiss their summons.

The applicants appeared in person