Arum Arasmita v. Torture Claims Appeal Board

HCAL 998/2022

[2023] HKCFI 1411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 998 OF 2022

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BETWEEN

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D E C I S I O N

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1.On 11 November 2022 I refused to extend time to the late application of the applicant for leave 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 there was no good reason for her extremely serious delay of 3 years with her application, that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her 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 12 December 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 25 November 2022, and hence she was more than 2 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the applicant’s case, a delay of more than 2 weeks must be considered as significant and inordinate, for which she explained at the hearing that she received the decision late only in early December 2022 when by then she was already out of time to appeal.

5.The court record shows that the decision was first sent on the same day of 11 November 2022 to Castle Peak Bay Immigration Centre (“CIC”) where she was then being detained but was returned through undelivered post as she had earlier already been released, and upon subsequent enquiry with the Immigration Department that the decision was re-sent on 28 November 2022 to her new address as the same as stated in her present application, of which the applicant conceded that she never informed the court notwithstanding that she had been released since October 2022. As such and as it was her duty being a non-refoulement claimant to inform the authorities including the Court as soon as practicable of any change to her address, the applicant has only herself to blame for the delay so caused to her intended appeal, of which I shall next consider whether there is any prospect of success.

6.In her supporting affirmation the applicant stated as follows:

“I am the applicant herein. The decision made by the high Court judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and the situation in my country. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be reused. I humbly request the Court to allow my appeal out of time and give a chance to explain.”

7.At the hearing of her summons the applicant however did not elaborate in what way was the decision reached unfairly, or how she was not allowed any opportunity to clarify her case as she never requested any oral hearing for her leave application in the first place, and hence it was dealt with by the court in her absence and on paper, but at the hearing of her summons before me, she did not clarify her case or the situation in her home country any further other than just repeating her claim of fear of harm from her husband as before that she cannot return to her home country.

8.As such, and as 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 her affirmation or at the hearing of her summons, 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.

9.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