Subba Roda v. Director of Immigration

HCAL 1002/2021

[2022] HKCFI 439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1002 OF 2021

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Hearing:  19 January 2022

Date of Decision:  19 January 2022

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D E C I S I O N

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1.This hearing has been fixed for a summons dated 13 December 2021 by which the applicant seeks to be granted leave to appeal out of time from my decision and order dated 16 November 2021.

2.In my decision headed “Judgment”, I refused the applicant’s application for leave to apply for a judicial review seeking to challenge the decision of the Director of Immigration to refuse to process her application for a new foreign domestic helper visa to work for a new employer.  The application for leave to apply for judicial review was dismissed for the reasons which are evident within the Judgment.

3.Time within which to have launched an appeal without the necessity for the prior obtaining of leave would have expired, or did expire, on 30 November 2021.  That is why the application has been made by the applicant seeking leave to appeal.  In reality, what she seeks is an extension of time within which to appeal.

4.The affirmation in support of the application explains that the applicant did not have financial means to obtain concrete legal advice regarding the procedure of appeal and thereby, I think, seeks to be excused from not bringing the appeal in time and therefore seeking the extension.  She adds in the affirmation that she believes that the merits of the ground of appeal constitutes sufficient reason or justification for the court to exercise its discretion in allowing the appeal to be brought out of time.

5.The summons itself has a section that says “take notice that the grounds of the proposed appeal and the order which the applicant will ask the Court of First Instance to make on the appeal if leave is granted are set out in the draft notice of appeal annexed hereto”.  I assume that the reference in that rubric to the Court of First Instance is in fact properly a reference that should be to the Court of Appeal.

6.Nevertheless, unfortunately there is no notice of appeal or a draft of a notice of appeal annexed to the summons.  Having asked internally for the file to be checked as to whether such a draft existed, it seems that there was no draft that was provided together with the summons and therefore it is impossible for me to identify what are stated to be the grounds of the proposed appeal, nor to consider whether the merits of those grounds or the ground, if there is only one, would constitute sufficient reason or justification for me to exercise my discretion to extend time to permit the appeal.

7.The length of the delay is not very long, less than two weeks, and it is probably explicable by the fact that the applicant acts in person and that she may not have been able to obtain advice readily so as to determine the correct procedure for launching her intended appeal. Therefore the length of delay on its own might not have been determinative of this application.

8.But in order to exercise the discretion properly as to whether or not to extend time, it really seems to me that I would need to be able to assess, at least on a preliminary basis, the apparent merits of the proposed appeal which would mean that there would have to be actual grounds identified.

9.Had the applicant attended this morning, I might have been able to ask her orally to identify those grounds that she might wish to argue on any appeal but as she has not come this morning and has not been able to be contacted this morning, that simply is not possible.

10.Therefore I regret that I feel I have no alternative but to refuse the application on the basis that there is no identifiable reason why it would be appropriate for me to extend time for leave to appeal, notwithstanding that the necessary extension would not be very great.

11.In those circumstances, I dismiss the application.

The applicant was not represented and did not appear

The putative respondent was excused from court attendance