Re Mtangi Emily Mosses

HCAL 324/2018

[2021] HKCFI 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 324 OF 2018

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D E C I S I O N

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1.On 23 June 2020 I refused to grant leave to the applicant to apply for judicial review of the decision 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 irrationality 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 14 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 7 July 2020, and hence she was late by more than 2 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 more than 2 months must be considered as significant, for which she explained at the hearing of her summons that there is no mailbox in her current residence to receive her mails and hence she was not aware of the decision until much later when she reported on her recognizance that she was informed by her immigration officer of the same, but by then she was already out of time with her intended appeal. In support of her assertion the applicant produced some SMS correspondence with her landlord enquiring about the lack of mailbox for receiving her mails in her current rented residence.

5.The records show that the decision was sent on the same day to her reported address without being returned through undelivered post, and as she admitted at the hearing that she has been residing in her current address for more than 3 years through which she was supposed to have received many correspondence from the Immigration Department regarding her non-refoulement claim all these years, and given her duty to provide both a residential and correspondence address to all authorities as required by the Immigration Ordinance, I find it incredible and unacceptable that it was only until now that she has disclosed not to have any mailbox in her residential address to receive her mails.           

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 affirmation, and at the hearing of her summons she merely repeated her claim that her life would still be in danger in her home country that she cannot yet leave 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.       

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