Re Umayah Saino

HCAL 2032/2018

[2022] HKCFI 1695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2032 OF 2018

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  1 June 2022

Date of Decision:  14 June 2022

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D E C I S I O N

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1.On 22 June 2021 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 rejecting/dismissing her appeal regarding her non-refoulement claim upon finding that there was no good reason for her serious delay of more than 6 ½ months, that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“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 24 December 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 6 July 2021, and hence she was another 5 ½ 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 5 ½ months must be considered as very substantial and inordinate, for which she explained at the hearing of her summons that she never received the decision in the mail after she had moved to a new address of which she only informed the Immigration Department but not the Court, and when she was eventually informed by her immigration officer of the same and had to come to court for a copy of the decision, 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 if indeed she had changed her address without informing the court, of which it was her duty to do so, the Applicant has only herself to blame for the resultant delay. In the circumstances I am not satisfied that the Applicant has any good reason for her serious delay.

6.More importantly, nor has the Applicant 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 or her affirmation, and at the hearing of her summons she could only state that she now has a family in Hong Kong and hence she wants to stay here. 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. I accordingly refuse her application for extension of time to appeal, and dismiss her summons.

The Applicant appeared in person