Akter Rujina v. Torture Claims Appeal Board

HCAL 773/2022

[2023] HKCFI 1485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 773 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 8 February 2023 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 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 24 February 2023 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 22 February 2023, and hence she was 2 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 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 2 days cannot by any means be considered as significant, for which she explained at the hearing of her summons that at that time she was ready to return to her home country, and that she did even request to withdraw her application, but later when she was informed by her family in Bangladesh that the risk from her separated husband to harm her still existed, she therefore changed her mind about returning home and instead decided to appeal, but by then she was just out of time to do so.

5.The court record shows that the decision was sent on the same day of 8 February 2023 to the Applicant’s last reported address without being returned through undelivered post, while changing one’s mind about legal proceedings cannot per se be accepted as any good or valid reason for failing to comply with procedural requirements, but given the relative insignificance of her delay, I propose to focus on the prospect of her intended appeal.

6.However, the Applicant 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, and at the hearing of her summons she could only repeat her claim of risk from her husband as before. 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.