Re Indah Ayu Yulianingsih

HCAL 257/2022

[2022] HKCFI 3782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 257 OF 2022

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Before:  Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:  14 December 2022

Date of Decision:  28 December 2022

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D E C I S I O N

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1.On 6 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 19 September 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 expired on 20 June 2022, and hence she was some 3 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 3 months must be considered as very substantial and inordinate, for which she explained at the hearing of her summons that she changed her residential address sometime in June 2022 but did not inform the Court of her new address until later in September 2022, and hence by the time she received the decision re-sent to her new address, she was already out of time to appeal.

5.The court record shows that the decision was first sent on the same day of 6 June 2022 to the applicant’s then reported address at Castle Peak Bay Immigration Centre (“CIC”) where she was then being detained, which was later returned through undelivered post as she had since been released, and upon proper enquiry with the Immigration Department, the decision was re-sent on 5 July 2022 to her latest reported address without being returned through undelivered post, which would push the deadline for her to appeal to 19 July 2022, but in which case the applicant would still be 2 months late with her appeal, and in the absence of any further details or evidence to corroborate her bare assertion that she only received the decision in September 2022, and that even if that was indeed the case that she would have only herself to blame for failing to inform the court as soon as practicable of any change to her residential address, I am not satisfied that the applicant has any good or valid reason for her serious 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 in her summons or in her affirmation, and at the hearing of her summons she just repeated her claim as before that her life is still in danger in her home country. 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