Re Aisah

HCAL 1673/2021

[2022] HKCFI 2659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1673 OF 2021

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  24 August 2022

Date of Decision:  7 September 2022

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D E C I S I O N

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1.On 6 January 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 14 February 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 20 January 2022, and hence she was more than 3 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 3 weeks must be considered as significant and inordinate, for which she explained at the hearing of her summons that she had used her friend’s residence as her correspondence address for receiving her mails, but after her friend had received the decision in the mail, her friend forgot to bring it to her until later 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 if indeed it was her friend who caused the delay, the Applicant has only herself to blame, and as such I am not satisfied that she has provided a good or valid reason for her significant delay.

6.More significantly, 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 in her affirmation, and that at the hearing she could only repeat her claim as before that it is still dangerous for her to return to her home country. In the circumstances, 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