Hassan Peerzade Murtaza and Others v. Torture Claims Appeal Board

HCAL 1858/2019

[2024] HKCFI 2439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1858 OF 2019  

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D E C I S I O N

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1.On 23 May 2023 I refused to grant leave to the 2^nd, 3^rd and 4^th Applicants (Mother and her 2 now adult children, with the Father the 1^st Applicant having earlier already withdrawn his application and left Hong Kong) to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing their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 their 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 2^nd, 3^rd and 4^th Applicants (“Applicants”) now by a summons issued on 13 August 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 6 June 2023, and hence they were more than 14 months late with their intended appeals.    

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 more than 14 months must be considered as very substantial and inordinate, for which they explained at the hearing of their summons that they never received the decision in the mail, and that it was sometime in early August 2024 when they reported to the Immigration Department on their recognizance that they were informed by their immigration officer of the decision, but by then they were already seriously out of time with their intended appeals.    

5.The court record shows that the decision was sent on the same day of 23 May 2023 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 evidence to corroborate their bare assertion, I am not satisfied that the Applicants have provided a good or valid justification for their such 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 in their affirmation, nor were they able to do so at the hearing of their summons other than repeating their claim as before and asserting that having lived in Hong Kong for so many years that they no longer have any home to return to in Pakistan.  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 appeals.   

7.In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal of the Applicants.  Accordingly, I refuse their application for extension of time to appeal, and dismiss their summons.  

The Applicants appeared in person