Re Ahire Sandhya Bhaskar

HCAL 153/2019

[2021] HKCFI 2955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 153 OF 2019

____________________

____________________

Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 24 September 2021

Date of Decision: 7 October 2021

____________________

D E C I S I O N

____________________

1.On 26 February 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 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 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 31 May 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 12 March 2021, and hence she was more than 11 weeks 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 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 The 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 11 weeks must be considered as very substantial, for which she explained in her affirmation and also at the hearing of her summons that as she was unrepresented and did not know how to make her appeal, she had had to seek help form her friends when 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 without being returned through undelivered post, and while accepting that she is already in her 70s and needed to seek help from others with her intended appeal, that cannot per se be accepted as a good or valid reason for the non-compliance of rules.  In the circumstances I am not satisfied that the applicant has provided a good reason for her serious delay.

6.More importantly, the applicant has failed to 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 reasonably be argued that the decision was unfair or unreasonable either in her summons, while in her affirmation she merely stated that her problem in her home country has still not been resolved that she cannot yet return to India, while at the hearing she just repeated such claim and that she needs to remain in Hong Kong for medical care due to her failing health.  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, and for the reasons given, 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