Re Palangdosan Marina Lipawen

HCAL 495/2018

[2020] HKCFI 51

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 495 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 29 November 2019

Date of Decision: 6 January 2020

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DECISION

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1.On 30 July 2019 Deputy High Court Judge Josiah Lam refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing her non-refoulement claim upon finding none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

2.The Applicant now by a summons issued on 20 September 2019 seeks leave to appeal against that decision out of time, as the 14-day period for her to file her appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 13 September 2019 after discounting the month of August 2019 for the court’s summer vacation, and hence she was late by about seven days with her intended appeal. 

3.In considering whether to extend time for appealing against a decision refusing leave to appeal 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 an 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 Applicant’s case, a delay of seven days cannot be said to be significant, for which she explained at the hearing of her summons that as she was unrepresented and was not aware of the law requiring her to file her notice of appeal within 14 days.  Ignorance of the law cannot of course be accepted as any valid reason for its non-compliance, but as stated above that seven days cannot be regarded as significance given that the Applicant is an unrepresented claimant, I therefore propose to focus on the prospect of her intended appeal.

5.However, she did not either in her summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and at the hearing when she was invited to do so, she conceded that she was unable to find any mistake or error in the decision, and merely repeated her claim that her life would still be in danger in her home country. As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in her intended appeal. 

6.In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse her application for leave to appeal out of time, and dismiss her summons.

The applicant appeared in person