Case Document

100%Judiciary

HCAL 607/2018

[2021] HKCFI 1623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 607 OF 2018

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RE:

SALINA THAPAMAGAR

Applicant

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 1 June 2021

Date of Decision: 22 June 2021

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D E C I S I O N

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1.On 15 December 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 (“Board”) in refusing to allow the late filing of her Notice of Appeal upon finding there was no good reason for her very substantial delay, 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.

2.The applicant now by a summons issued on 24 March 2021 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 29 December 2020, and hence she was almost 3 months late 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 3 months must be considered as very substantial, for which she stated in her affirmation the following:

“I am the applicant herein. The decision made by the High Court judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my county. Moreover, it’s not sufficient that was a litigant in person & unrepresented, thereby making me unaware of the rules regarding 14-day time limit”. I did not receive any correspondence from the court regarding the dismissal of my Judicial Review. I humbly request the court to allow my Appeal out of time and give a chance to explain.”

5.At the hearing of her summons the applicant further clarified that she never received the decision in the mail as she changed her address sometime in June 2020, and it was much later that she was handed the decision from her former co-tenant which she claimed to have been sent to her former address but by then she was way out of time with her intended appeal.

6.The court record shows that the decision was sent on the same day of 15 December 2020 to the applicant’s then reported address without being returned through undelivered post. If she had indeed changed her address in June 2020 as alleged, it was her duty to inform the relevant authorities including the court as soon as practicable, and if she had not done so, she had only herself to blame for not receiving the decision in the mail on time, nor could it be an acceptable excuse for the delay if it was her friend who handed her the decision months later. As such I am not satisfied that the applicant has provided any good reason for her serious delay.

7.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, nor did she at the hearing of her summons make any attempt to clarify her case or situation in her home country which she has complained, as noted above, that she was not allowed the opportunity to do so in her leave application for judicial review, and the record shows that she had never requested for any oral hearing for her leave application in the first place. In the circumstances, 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.