Pham Thi Lien and Another v. Torture Claims Appeal Board

HCAL 1088/2019

[2024] HKCFI 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1088 OF 2019

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D E C I S I O N

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1.On 1 February 2024 I refused to grant leave to the 1^st and 2^nd Applicants (“the Applicants”) to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their non-refoulement claims upon finding 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 the 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 26 February 2024 seek extension of time to appeal, as the 14-day period after the decision within which to file their appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 15 February 2024, and hence they were 11 days late 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 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 11 days may not be considered as substantial, for which they did not provide any explanation in their summons or affirmation, and as the record shows that the decision was sent on the same day of 1 February 2024 to their last reported address without being returned through undelivered post, I do not see any good or valid reason for their delay.

5.More importantly, the Applicants also failed to 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 reasonably be argued that the decision was unfair or unreasonable either in their summons or their affirmation in which they just repeated their claims as before, nor did they subsequently attend the hearing of their summons without any explanation. 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.

6.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 are unrepresented and did not appear