Re Fitria Nur Hidayati

HCAL 866/2018

[2021] HKCFI 636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 866 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 4 March 2021

Date of Decision: 18 March 2021

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D E C I S I O N

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1.On 14 September 2020 I refused to extend time to the applicant’s late application for leave to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding no good reason for her very serious delay, that no proper ground had been put forward by her 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 5 October 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 September 2020, and hence she was late by 7 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 7 days may not be considered as significant, for which she explained at the hearing of her summons that as she was unrepresented and by the time she was able to get one of her friends to help her with her application, she was already out of time with her intended appeal. Given her circumstances and the relatively insignificant delay, I propose to focus on the prospect of her intended appeal.

5.The applicant however did not put forth 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, and as her children were born in Hong Kong and go to school here, she does not want to leave here to return 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.

6.I should also note that the applicant at the hearing asked to include her daughter in her intended appeal, as she claimed that when her friend prepared the documents for her, she omitted to include her daughter in the application. While I note that the applicant did include her daughter as the second applicant in her non-refoulement claim before both the Director and the Board which was based on her own claim, but somehow she omitted to include her daughter in her Form 86 leave application for judicial review, and of which I therefore considered only her own claim in my decision without her daughter. As such it is procedurally not possible or necessary for her to include her daughter in her intended appeal, and she was accordingly advised to file another Form 86 for her daughter if she so wishes, albeit she would be way out of time to do so by now.

7.In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal regarding the applicant’s own claim. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.

The applicant appeared in person