Re Ani Nur Ainiah

HCAL 784/2018

[2021] HKCFI 1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 784 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 30 June 2021

Date of Decision: 13 July 2021

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D E C I S I O N

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1.On 8 April 2021 I refused to grant leave to the applicant 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 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 28 April 2021 seeks extension of time to appeal against that decision, as the 14-day period for him to file her appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 22 April 2021, and hence she was 6 days 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 6 days may not be regarded as significant, for which she explained in her supporting affirmation that she was unrepresented and had had to seek help from her friends for advice regarding her right to appeal, but by thne she was slightly out of time, and at the hearing of her summons she further clarified that her child was at that time sick and was hospitalized, and as she was busy taking care of her child that it was not until 19 April 2021 did she notice the letter containing the decision in her mailbox, but by then she was already out of time with her intended appeal.

5.The court record shows that the decision was sent on the same day to the applicant’s last reported address which is the same as stated in her present application without being returned through undelivered post, while ignorance of the rules cannot be accepted as an excuse or reason for their non-compliances, and in the absence of any documentary evidence from the applicant to corroborate her bare assertions, I am not satisfied that she has provided any good 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 affirmation, and at the hearing she just repeated her claim that her problem in Indonesia has still not resolved that she cannot 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.

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