Re Rasolonomenjanahary Anjy Harimalala

HCAL 1279/2021

[2022] HKCFI 1855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1279 OF 2021

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  15 June 2022

Date of Decision:  30 June 2022

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D E C I S I O N

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1.On 25 October 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 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 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 22 November 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 the High Court, Cap 4A ended on 8 November 2021, and hence she was 14 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 14 days may be considered as significant, for which she explained at the hearing that since she has been detained at the Castle Peak Bay Immigration Centre (“CIC”) with no legal representation that she had had to seek assistance for her application 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 at CIC without being returned through undelivered post, but taking into account of the inevitable delays in incoming and outgoing mails for detainees and inmates and the fact that the Applicant was unrepresented, I propose to focus on the prospect of her intended appeal.

6.However, the Applicant did not put forth any proper or valid draft or proposed grounds of appeal in her summons, while in her affirmation in which she complained essentially that her leave application was dealt with on paper without allowing her “an opportunity to clarify her case and situation in her country” that the decision was reached unfairly, the fact is that she never requested any oral hearing for her leave application in the first place, nor did she at the hearing of her summons put forward any clarification of her case or situation of her country which she complained of not being able to do so for her leave application.

7.As noted in my decision refusing leave for her to apply for judicial review, it has been correctly established by both the Director and the Board in their decisions that on the factual basis of her own case, the risk of harm in the Applicant’s claim is a localized one arising from a private dispute without any official elements, and hence reasonable internal relocation was available for her to safely return to other part of her home country without any risk of being located, a finding which she has not been able to dispute or challenge at the hearing of her summons. 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.

8.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