Case Document

100%Judiciary

HCAL 782/2018

[2020] HKCFI 2900

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 782 OF 2018

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RE:

NIKMATURODIYAH

Applicant

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Before:

Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:	22 October 2020
Date of Decision:	1 December 2020

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DECISION

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1.On 4 June 2020 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal regarding her non-refoulement claim upon finding that there was no good reason for her delay with her application, that 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 of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

1. The Applicant now by a summons issued on 5 August 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 18 June 2020, and hence she was late by almost 7 weeks with her intended appeal.

2.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.

3.In the Applicant’s case, a delay of almost 7 weeks must be considered as significant, for which she explained at the hearing of her summons that due to the Covid-19 pandemic, she was afraid to leave her home to file her appeal until early August 2020 when she was reminded by her immigration officer to do so, but by then she was already out of time.

4.While it is true that at the material time the public health situation due to the pandemic was very serious, and as a matter of fact still is, but subject to certain precautionary measures being taken, the daily life and activities in the city have by and large returned to normalcy, and that in the Applicant’s situation where it is claimed that life and limb are at stake, I fail to see how it could have prevented her from taking the necessary steps to file her notice of appeal within time. In the circumstances I am not satisfied that she has shown any good reason for her delay.

5.More importantly, nor did she put forward any proper or valid 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 either in her summons or affirmation, and at the hearing she merely repeated her claim that she cannot return to her home country and asked that she be allowed to stay in Hong Kong. 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 extension of time to appeal, and dismiss her summons.