Re Chaisan Thidarat

HCAL 881/2021

[2022] HKCFI 3320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 881 OF 2021

_____________

_____________

Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 19 October 2022

Date of Decision: 1 November 2022

_____________

D E C I S I O N

_____________

1.On 23 July 2021 I refused to grant leave to the applicant to apply for judicial review of the decision dated 12 May 2021 of the Director of Immigration (“Director”) in refusing to allow her to make a subsequent claim for non-refoulement protection after her previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screen Mechanism (“USM”) on all applicable grounds upon finding that the basis of her proposed subsequent claim was essentially the same as that of her previous claim as found by the Director, 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 of her request to the Director, that the Director was correct to find that she had failed to provide sufficient evidence that there had been a significant change of circumstances since her previous claim was determined or that such change when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success, and that there was no reasonable prospect of success in her intended application.

2.The applicant now by a summons issued on 21 June 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 6 August 2021, and hence she was more than 10 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 more than 10 months must be considered as very substantial and inordinate, for which she did not provide any explanation in her summons or supporting affirmation, and that she also failed to attend the hearing of her summons without any explanation. As such, and as the court record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I am unable to see any good or valid reason for her serious delay.

5.More significantly, nor did 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 in her affirmation, and as noted above that she also failed to attend the hearing of her summons. 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.

6.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 was not represented and did not appear