Wulandari v. Torture Claims Appeal Board and Another

HCAL 1126/2021

[2023] HKCFI 2875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1126 OF 2021

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D E C I S I O N

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1.On 20 April 2023 I refused to extend time to the late application of the Applicant for leave to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding that there was no good reason for her serious delay, that none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the 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 20 September 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 ended on 4 May 2023, and hence she was some 4 ½ 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 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 4 ½ months must be considered as very substantial and inordinate, for which she stated in her supporting affirmation, which appears to have been prepared with legal assistance, as follows:

“I am the Applicant. The decision made by the High Court Judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that was a litigant in person & unrepresented. My appeal is out of time because I never received any correspondence from the Court regarding my leave to apply for Judicial Review be dismissed. I humbly request the Court to allow my appeal out of time and accept my explanation.”

5.The court record shows that the decision was sent on the same day of 20 April 2023 to the Applicant’s last reported address which is the same as stated in her present application without being returned through undelivered post, and in the absence of any further or relevant details or documentary evidence to corroborate her bare assertions, I am not satisfied that the Applicant has provided a good reason for her such 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 either in her summons or in her affirmation in which she failed to provide any necessary or relevant details or particulars as to how was the decision reached unfairly, while her claim of not being allowed any opportunity to clarify her case or situation in her country is simply factually incorrect as she did attend an oral hearing of her leave application on 7 March 2023 during which she was able to present her case fully and properly with the assistance of an interpreter. As such, and in the absence of any error in the decision being clearly and properly identified by the Applicant who also failed to attend the hearing of her summons without proper explanation, 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. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.

The Applicant is unrepresented and did not appear.