Re Santi Diana Sari

HCAL 141/2018

[2020] HKCFI 2301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 141 OF 2018 

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D E C I S I O N

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1.On 14 September 2018 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 the 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 24 June 2020 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 28 September 2018, and hence she was out of time by almost 1 year and 9 months with her 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 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 1 year 9 months must be considered as extremely substantial and excess, for which she explained in court that she did not know how to appeal until one occasion in June 2020 when she reported to the Immigration Department that she was told how to do so, but by then she was already way out of time.

5.Ignorance of the law cannot of course be accepted as an excuse or reason for not complying with the rules or procedures, especially with such a serious procedural breach.  As such I do not accept that the Applicant has any valid explanation or reason for her serious delay. 

6.More importantly, nor did she in her summon or supporting affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, and at the hearing she merely repeated her claim that she cannot go back to her home country as her life would be in danger.  In the circumstances 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.      

7.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