Kaur Surjit and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2950/2019

[2025] HKCFI 3605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2950 OF 2019

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BETWEEN

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DECISION

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The application

1.The 2^nd applicant has taken out a summons for extension of time to appeal against the Judgment dated 1 April 2025 (“the Judgment”)  dismissing their applicant for leave to apply for judicial review of the Decision dated 19 November 2018 of the Torture Claims Appeal Board (“the Board’s Decision”). By another summons taken out by the 3^rd applicant, the 3^rd applicant also applied for extension of time to appeal against the Judgment. This Court will hear the summonses taken out by the 2^nd and the 3^rd summonses together since they rely the same set of facts.

2.The applicants are the second applicant and the 3^rd applicant of the family in this action. They are illegal immigrants by staying in Hong Kong without permission, and together with their mother, they jointly lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decision.

3.The applicants are now adults.

4.Pursuant to Order 53, rule 3(2)  of the Rules of the High Court (“RHC”), the applicants’ family filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

5.By the Judgment, the Court dismissed their application for the reason that there is no realistic prospect of success in their intended application.

6.The Judgment was sent to the applicants on 1 April 2025 at their last known address without being returned from the Post Office. The applicants are deemed to receive the Judgment[1].

7.The time for filing their notice of appeal expired on 15 April 2025[2].

8.By summons filed by the 2^nd applicant on 6 May 2025, the 2^nd applicant applied for appeal against the Judgment out of time. She was late for 20 days.

9.By summons filed by the 3^rd applicant on 19 May 2025, the 3^rd applicant applied for appeal against the Judgment out of time. She was late for 33 days.

10.In her affirmation in support of her application, the 2^nd applicant said that she did not receive the Judgment from the Court.

11.In her affirmation in support of her application, the 3^rd applicant said that she did not know the deadline to file her notice of appeal.

Discussion

12.Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3)  of the RHC, having considered the applicant’s reason, I decide to determine their applications on paper without an oral hearing[3].

13.The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3)  in considering if extension of time should be extended: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of her case.

14.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

15.The applicants claimed that if refouled, they and their mother would be harmed or killed by their mother’s in-laws because of a family dispute. They were, at that time, the 2^nd and the 3^rd applicants represented by their mother as the 1^st applicant. They relied upon their mother’s facts in support of their application.

16.The Director rejected their claim because it was not substantiated. They appealed to the Board.

17.Having considered the evidence, the Board dismissed their appeal for the reason that it did not believe that their mother and the applicants would have any risk if they returned to their country.

18.There is no valid reason from the applicants to challenge the Board’s Decision or the Judgment.

19.Those reasons under paragraphs 10 and 11 are not valid. The 2^nd applicant is deemed to receive the Judgment. The 3^rd applicant’s ignorance of the procedure for appeal is not a valid defence for her lateness.

20.In the circumstances, I refuse to extend time for their appeals. Accordingly, I dismiss their respective applications.

The applicants were unrepresented.