Riris Tanti Wilujeng and Another v. Torture Claims Appeal Board

HCAL 285/2019

[2024] HKCFI 2319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 285 OF 2019

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BETWEEN

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D E C I S I O N

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1.On 7 May 2024 I refused to grant leave to the Applicants, a mother and her minor son, 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 either of their intended application.

2.The Applicants now by a summons issued on 4 July 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file their appeals under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 21 May 2024, and hence they were some 6 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 6 weeks must be considered as substantial and inordinate, for which the 1^st Applicant explained at the hearing of their summons that they only received the decision late in early July 2024 whereupon she immediately came to the Court for assistance to appeal, but by then they were already out of time.

5.The court record shows that the decision was sent on the same day of 7 May 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 documentary evidence such as the envelope that contained the decision to show the actual postmark to corroborate the 1^st Applicant’s bare assertions, I am not satisfied that the Applicants have any good or valid justification 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 affirmation, nor was the 1^st Applicant able to do so at the hearing of their summons other than just repeating their claim of still having the same problem in her home country that they cannot return. 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 the summons.

The 1^st Applicant appeared in person for herself and the 2^nd Applicant