Iqbal Muhammad and Others v. Torture Claims Appeal Board

HCAL 314/2019

[2024] HKCFI 1363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 314 OF 2019

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D E C I S I O N

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1.On 9 January 2024 I refused to grant leave to the Applicants, a married couple with their 4 children to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their non-refoulement claims, all based on the same primary facts, upon finding that none of the grounds put forward by them reasonably arguable for their intended challenges, that there was no error of law or procedural unfairness in their processes 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 15 April 2024 seek extension of time to appeal against that decision, 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 23 January 2024, and hence they were some 2 months and 3 weeks 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 2 months and 3 weeks must be considered as very substantial and inordinate, for which the 1^st Applicant who also spoke on behalf of his family explained at the hearing of their summons that they received the decision about 2 weeks late due to the confused setting of the mail boxes in their current residence, and that thereafter they did not know how to proceed to appeal until later when they reported on their recognizance that they were so advised by their immigration officer, but by then they were already out of time with their intended appeal.

5.The court record shows that the decision was sent on the same day of 9 January 2024 to the Applicants’ last reported address which is the same as stated in their present application without being returned through undelivered post, and in the absence of any relevant details or evidence to corroborate A1’s bare assertions, while ignorance of the law can never be accepted as a valid excuse for procedural breach or non-compliance, I am not satisfied that the Applicants have provided a good or valid reason for their serious delay.

6.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, nor were they able to do so at the hearing of their summons. 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 to the Applicants 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