Navarro Ma Trisha Rodriguez v. Torture Claims Appeal Board

HCAL 1225/2024

[2025] HKCFI 654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1225 OF 2024

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D E C I S I O N

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1.On 12 September 2024 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Director of Immigration (“Director”) in refusing to allow her request to make a subsequent claim after her previous claim had been finally determined and rejected by both the Director and the Torture Claims Appeal Board (“Board”) upon finding that none of the grounds put forward by her were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director or in his decision, and that there was no reasonable prospect of success in her intended application.

2.The Applicant now by a summons issued on 27 December 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 26 September 2024, and hence she was some 3 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 3 months must be considered as substantial and inordinate, for which she explained in both her affirmation and at the hearing of her summons that the delay was caused due to her lack of legal knowledge and confusion over whether there was any Restricted Proceedings Order (“RPO”) being included in the order which she intended to appeal, and had had to make enquiries with the Court, but by the time she received the reply from the Court that there was no RPO against her, she was already out of time with her intended appeal.

5.The court record shows that the decision was sent on the same day of 12 September 2024 to the Applicant’s last reported address without being returned through undelivered post, and as the decision clearly did not contain any RPO against the Applicant and hence there was never any necessity for her to make any enquiry, I am not satisfied that the Applicant has provided any good or valid 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 affirmation, 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 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 appeared in person