Re Garbuja Narmaya

HCAL 1509/2018

[2021] HKCFI 104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1509 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 2 December 2020

Date of Decision: 28 January 2021

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D E C I S I O N

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1.On 14 July 2020 I refused to grant leave to the Applicant 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 none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or irrationality 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.

2.The Applicant now by a summons issued on 7 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 28 July 2020, and hence she was late by almost 6 weeks 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 almost 6 weeks cannot be considered as insignificant or insubstantial, for which she explained in her supporting affirmation and also at the hearing of her summons that she was uneducated and did not know about the law or procedure regarding the filing of appeal, and hence by the time she was able to get help from her friends that she was already out of time with her intended appeal.

5.Ignorance of the law cannot of course be accepted as a valid reason for its non-compliance, and given the fact that she did clearly have legal assistance in her appeal to the Board and would have had access to such assistance for her intended appeal, I am not satisfied that she has any good or valid reason for her delay.

6.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 in her affirmation in which she stated that she has good grounds for her appeal but did not provide or identify any, and at the hearing of her summons she merely repeated her claim that she would be killed by her enemy if returned to 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.

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