Re Sumiati

HCAL 642/2018

[2021] HKCFI 15

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 642 OF 2018

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D E C I S I O N

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1.On 19 August 2020 I refused to grant leave to the Applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of 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 15 September 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 expired on 2 September 2020, and hence she was late by 13 days 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 13 days may not be considered as significant, for which she explained at the hearing of her summons that as she was unrepresented and cannot afford lawyers, she had to find someone who can help her with the preparation of her appeal application, and also to accompany her to come to court for the filing of her application, all of which thus caused the inevitable delay.

5.I note that the Applicant has been without legal representation since 2018 but was able to conduct her appeal to the Board as well as her present application in person, but I also accept that she may not be able to read or write in English and therefore needed help from others with the documentation, and given her relatively insignificant delay, I accept her explanation and propose to focus on the prospect of her intended appeal.          

6.The Applicant however did not in her summons 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, and in her supporting affirmation she mainly repeated her claim of risk of harm from her creditor over her loan, while her complaint of not being considered her BOR 2 Risk is plainly wrong as it had been properly assessed and determined in both the decisions of the Director ([26] – [31] of his decision) and of the Board ([40] – [42] of its decision).

7.Her other complaint over their assessment on the availability of internal relocation is also without basis or merits in view of both of the findings of the Director and the Board that even on her own case that her claimed risk is a localized one and that it would not be unreasonable or unsafe for her in her circumstances to move to other parts of her home country in Indonesia without any risk of being located by her creditor. 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.       

8.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