Re Sumi Tahera Akhter

HCAL 2329/2018

[2022] HKCFI 1959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2329 OF 2018

_____________

_____________

Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 22 June 2022

Date of Decision: 6 July 2022

_____________

D E C I S I O N

_____________

1.On 25 February 2022 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal/petition regarding 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 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 25 April 2022 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 11 March 2022, and hence she was more than 6 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 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 more than 6 weeks must be considered as very substantial or inordinate, for which she explained in her affirmation that she got the Covid-19 virus at that time and hence missed the deadline to appeal but without providing any further details, and at the hearing of her summons she conceded to have no proof of having come down with the virus at that time as she only had cough and did not go to the doctor or hospital.

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 I cannot exclude the possibility of her explanation, in the absence of any further details such as the period when she allegedly caught the virus or why it had taken so long for her to make her present application to corroborate her bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for her such 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 or affirmation, and at the hearing of her summons she could only repeat her claim that she still has the same problem as before in her home country where her husband is still looking to kill her. 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