Re Tutik Sofiatin

HCAL 300/2022

[2022] HKCFI 3784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 300 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 14 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 11 August 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 28 June 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 and inordinate, for which she explained at the hearing of her summons that being an unrepresented litigant she was not aware of the 14-day requirement for the filing of appeal, and that it was only later when she reported on her recognizance that she was so informed by her immigration officer, but 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 while I accept that being unrepresented she might not have been well aware of the procedural rules for appeal, but the fact is that in law ignorance of the procedural rules can never be accepted as an excuse for their non-compliance. In the circumstances I am not satisfied that the applicant has provided any good or valid reason for her serious delay.

6.More importantly, 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 affirmation, while for the document subsequently submitted by her and dated 15 September 2022 which she entitled “Appeal Ground”, a careful examination reveals that it is in fact just her explanations as to why she was late with her intended appeal but without anything which might resemble any proper ground of appeal, nor was she able to provide any at the hearing of her summons other than just repeating her claim as before that she cannot return to her home country where her life will still be in danger. 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