Re Mwajuma Patson Mwanyakule

HCAL 585/2018

[2020] HKCFI 514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 585 OF 2018 

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D E C I S I O N

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1.On 19 July 2019 I 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 21 October 2019 seeks extension of time to appeal against that decision, as the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 2 August 2019, and hence she was late by more than 6 weeks with her intended appeal after discounting the month of August for the court’s summer vacation. 

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 more than 6 weeks must be regarded as significant, for which she explained at the hearing that she never received the decision in the mail from the court until sometime in October 2019 when she reported to the Immigration Department and was then told about the decision, and that only thereafter that she attended at the court for a copy of the decision when by then she was already way out of time to file her appeal.

5.The court record however shows that the decision was sent by post on the same day of 19 July 2019 to her last reported address, but of which she claimed to have then moved to a different one without informing the court, but was unable to provide any further evidence as to when exactly did she move, and since it was her duty to inform any such change to the authorities as soon as possible, I am not satisfied in the circumstances that she has any good or valid reason for her delay.    

6.As for the prospect of her intended appeal, the Applicant did not provide any draft or proposed grounds of appeal in her summons, and in her supporting affirmation she merely stated as follows:

“ I am the Applicant herein. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. The decision has heavily relied on Country of Origin provided by the ImmD. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I humbly request the Court to allow my appeal out of time and give a chance to explain. I did not receive any correspondence from the Court regarding the date of Court hearing. This is why I could not appear at the hearing date.”

7.At the hearing of her summons, the Applicant however did not make any further clarification of her case or situation in her country despite being invited by the court to do so, nor did she put forward any further ground for her intended appeal, other than asking to be given further time to remain in Hong Kong as her life would still be in danger if refouled to her home country. 

8.As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, or any particulars as to why it may be considered as unfair or unreasonable, I do not see any prospect of success in his intended appeal. 

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

The applicant appeared in person