Balubal Melanie Cadang v. Torture Claims Appeal Board

HCAL 1119/2024

[2024] HKCFI 3486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1119 OF 2024

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BETWEEN

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D E C I S I O N

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1.On 29 August 2024 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, and that there was no reasonable prospect of success in her intended application.

2.The Applicant now by a summons issued on 16 September 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 14 September 2024 after discounting the month of August for the court’s vacation, 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 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 2 days cannot on any view be considered as significant, and for which she explained in both her supporting affirmation and at the hearing of her summons that she was released from detention at the Castle Peak Bay Immigration Centre (“CIC”) on 24 August 2024 and did not thereafter receive the decision in the mail to her residential address until sometime after 10 September 2024, but when she tried to file her intended appeal on 16 September 2024, she was told by the Registry that she was already out of time to do so, and for which she was advised to issue her summons to seek extension of time from the court for her late appeal.

5.The court record shows that the decision was first sent on the same day of 29 August 2024 to the Applicant’s then detention at CIC but which was subsequently returned through undelivered post, and upon enquiry with the Immigration Department, the decision was re-sent on 10 September 2024 to the Applicant at her reported residential address without being returned through undelivered post, and hence the 14-day period within which upon receipt of the decision for her to file her appeal did not expire until after 24 September 2024, and hence when she tried to file her intended appeal on 16 September 2024, she was in fact not out of time to do so.

6.In the premises, and of course by now the Applicant would be out of time, I therefore grant an extension of time of 14 days from the date of this order for her to file her notice of appeal.

The Applicant appeared in person