Lipi Najnin Sultana v. Torture Claims Appeal Board

HCAL 2476/2020

[2025] HKCFI 2129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2476 OF 2020

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BETWEEN

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D E C I S I O N

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1.On 3 October 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 18 February 2025 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 17 October 2024, and hence she was some 4 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 months must be considered as substantial and inordinate, for which she explained at the hearing of her summons that shortly after receiving the decision, she was desirous of returning to her home country, but later when she was informed by her family in Bangladesh that her feared risk still existed, she therefore changed her mind and decided to appeal against the decision, but by then she was already out of time to do so.

5.The court record shows that the decision was sent on the same day of 3 October 2024 to the Applicant’s last reported address without being returned through undelivered post, while a change of mind about proceeding with her intended appeal can never be accepted as any justification for her failure to comply with the legal procedures, I am therefore not satisfied that the Applicant has provided a 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 in her 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, I therefore refuse her application for extension of time to appeal, and accordingly dismiss her summons.

The Applicant appeared in person