Akter Amena v. Torture Claims Appeal Board

HCAL 884/2019

[2024] HKCFI 209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 884 OF 2019

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BETWEEN

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D E C I S I O N

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1.On 17 October 2023 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding 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 of Immigration (“Director”) or the Board or in their decisions, that there was no reasonable prospect of success in her intended application, and that she also subsequently requested to withdraw her application as she wanted to return to her home country as soon as possible.

2.The Applicant now by a summons issued on 16 November 2023 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file her appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 31 October 2023, and hence she was some 16 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 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 16 days cannot be regarded as insignificant, for which she explained at the hearing of her summons that she was then suffering from her eyes problem that until she was later able to obtain contact lens for her eyes that she was only able to proceed with her intended appeal but by then she was already out of time with the filing of her notice of appeal.

5.The court record shows that the decision was sent on the same day of 17 October 2023 to the Applicant’s then reported address without being returned through undelivered post, and while I accept her claim of having been detained by the Immigration Department at one time and as noted above during which she did try to withdraw her leave application but which I do not find relevant to her subsequent delay with the filing of her notice of appeal, and as regard her claimed eye problem, in the absence of any further or relevant details or documentary evidence to corroborate her assertion, I do not find it to be a good or valid justification for her 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 just repeated her claim as before and that she was put under pressure by the Immigration Department to withdraw her leave application but which in my view even if true is not relevant to the consideration of any prospect of success of her intended appeal for the reasons given in my decision and summarized in [1] above. 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 his 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 appeared in person.