Afroz Mst Sumi and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2279/2018

[2023] HKCFI 870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2279 OF 2018

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D E C I S I O N

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INTRODUCTION

1.This is the Applicants’ application by summons filed on 28 February 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 20 July 2022 (the “Order”) refusing their application for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 29 September 2018 (the “Decision”).

THE LAW

2.Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal the judge’s order to the Court of Appeal within 14 days after such order was made. In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and AW v Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

DISCUSSION AND CONCLUSION

3.By the time when the Summons was filed, the application was six months and twenty-six days out of time which is very substantial in the context of a fourteen-day appeal period. The explanation for the delay as advanced by the 1^st Applicant in her supporting affirmation is that she was unaware of the procedure. That seemingly suggests they had received the Order and Form CALL-1. But they did not give any explanation for the substantial delay.

4.The Court also noted that the Order and Form CALL-1 were sent to the Applicants’ last known address in Ki Lung Street whereas their address as stated in the Summons is in Nam Cheong Street. There is no record in the Court file showing that they had updated the Court with their change of address. It is not known when they had moved to the Nam Cheong Street address. If in fact they had not received the Order because they had moved before the Order and Form CALL-1 were sent, they only had themselves to blame for the delay and bear the consequence: Karamjit Singh[3]. The Court did not find it necessary to explore the delay with the Applicants further. They had given no reasonable explanation for the very substantial delay.

5.In their Summons, the Applicants asked for leave to advance a new sole ground of appeal but gave no particulars of this new ground. It is incumbent on an applicant seeking extension of time to appeal to set out his grounds of intended appeal which is one of the factors for the court’s consideration in granted leave. They knew they had to state their grounds of the intended appeal. That was why they expressly asked for leave to advance a “new sole ground of appeal”. But they did not provide particulars of this new sole ground. In the absence of any grounds of the intended appeal, the Court could only come to the conclusion that they had no intention to prosecute their intended appeal and their intended appeal has no prospect of success.

6.For all these reasons, the Court found the Applicants’ intended appeal has no prospect of success. In the circumstances, there is no need to consider the prejudice to the proposed respondent and to public administration if this challenge is allowed to proceed, though the prejudice is obvious. Accordingly, the Applicants’ application for extension of time to appeal is refused.

The Applicants are not represented