Chalinat Analyn Pinay-an v. Torture Claims Appeal Board

HCAL 2273/2018

[2024] HKCFI 941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2273 OF 2018

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BETWEEN

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D E C I S I O N

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1.On 5 December 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 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, and that there was no reasonable prospect of success in her intended application.

2.The Applicant now by a summons issued on 27 February 2024 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 19 December 2023, and hence she was more than 2 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 more than 2 months must be considered as substantial and inordinate, for which she explained in her affirmation that being a litigant in person without legal advice or assistance that she was not aware of the need to file her intended appeal within 14 days, and at the hearing of her summons she further clarified that her lawyer was busy and took longer time to prepare the necessary documents for her which caused the delay.

5.The court record shows that the decision was sent on the same day of 5 December 2023 to the Applicant’s last reported address without being returned through undelivered post, and ignorance of the law and procedural requirements can never be accepted as an excuse for their non-compliance, while her lawyer being too busy is certainly no excuse for the delay. In the circumstances I am not satisfied that the Applicant has any good or valid justification 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 in her summons, while in her affirmation she just made some bare assertions that the decision was unfair and that she was not afforded an adequate opportunity to clarify her case but without providing any relevant details or particulars or elaboration as to how it was so, nor was she able to do so at the hearing of her summons. 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