Rai Chanda Kumari v. Director of Immigration

HCAL 1777/2024

[2025] HKCFI 3054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1777 OF 2024

_____________

BETWEEN

_____________

_____________

D E C I S I O N

_____________

1.On 5 December 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 to make a subsequent claim based on essentially her previous non-refoulement claim which had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) and that her subsequent legal challenge by way of judicial review was also refused by this Court upon finding 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 or in the decision, and that there was no reasonable prospect of success in her intended application.

2.The Applicant now by a summons issued on 12 March 2025 seeks leave to appeal against the Court’s decision out of time, 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 2024, and hence she was some 2 months and 3 weeks 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 months and 3 weeks must be considered as substantial and inordinate, for which she explained at the hearing of her summons that she was not aware of the procedural requirements for appeal and was without legal representation being detained by the Immigration Department until she was subsequently able to seek assistance from the welfare officers stationed in her detention center, but by then 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 5 December 2024 to the Applicant’s detention at Nei Kwu Correctional Institution without being returned through undelivered post, while ignorance of the procedural rules can never be accepted as any justification for their non-compliance. Accordingly 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 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. Accordingly, I refuse to grant leave to the Applicant to appeal out of time, and dismiss her summons.

The Applicant appeared in person