Re Shanaz

HCAL 2508/2018

[2022] HKCFI 3662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2508 OF 2018

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  30 November 2022

Date of Decision:  14 December 2022

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D E C I S I O N

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1.On 24 June 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 26 July 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 8 July 2022, and hence she was some 18 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 18 days must be considered as significant and inordinate, for which she explained that the decision arrived late in the mail about one month from the date of the decision, and hence 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 in the absence of any evidence such as the envelop which contained the decision showing the actual postmark to corroborate her bare assertion, I am not satisfied that the applicant has provided a good or valid reason for her delay.

6.More importantly, the applicant also 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 in which she just repeated her claim of still having problem in her home country where her life would be in danger but without putting forward any proper ground for her intended appeal, nor was she able to do so 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.

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