Iin-hansiyah and Another v. Torture Claims Appeal Board

HCAL 1819/2020

[2024] HKCFI 1755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1819 OF 2020

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D E C I S I O N

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1.On 29 February 2024 I refused to extend time to the Applicants’ late application for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their non-refoulement claims upon no good or valid reasons for their 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 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 8 May 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 14 March 2024, and hence they were some 8 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 8 weeks must be considered as substantial and inordinate, for which the 1^st Applicant explained at the hearing of their summons that they were not aware of the 14-day period required for the filing of appeals, and hence when they were ready to do so, 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 29 February 2024 to the Applicants’ last reported address without being returned through undelivered post, and as ignorance of the rules can never be accepted as any valid excuse for their non-compliance, I am not satisfied that the Applicants have provided any 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 or their affirmation, 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 for what appears to be a hopeless appeal by the Applicants. Accordingly, I refuse their application for extension of time to appeal, and dismiss their summons.

The Applicants appeared in persons.