RE SHERPA YANGJI

HCAL 902/2018

[2019] HKCFI 1659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 902 OF 2018

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DECISION

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The application

1.  The applicant is an illegal immigrant and she lodged a non-refoulement claim with the Director of Immigration (“the Director”).  The Director rejected her application and she appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  Having considered her evidence, the Board by its Decision dated 13 April 2018 (“the Board’s Decision”), rejected her appeal and confirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form 86 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.  She was absent on the date of hearing.  Deputy Judge J. Lam, who by Order dated 17 April 2019 refused her application.  The Deputy Judge had given the reasons for rejecting her application in Form Call-1 dated 17 April 2019 (“the Deputy Judge’s decision”).

3.  The applicant intends to appeal to the Court of Appeal against the Deputy Judge’s decision.  However, she is out of time under Order 53, rule 3(4) of RHC.  The deadline for her to appeal should be 1 May 2019, which is Sunday, a general holiday or a day where the court was closed.  By virtue of Order 53, rule 3(4) of RHC, the deadline should be 2 May 2019.  She took out the summons on 14 May 2019.  She is 12 days out of time.

The applicant’s affirmation

4.  The applicant filed an affirmation in support of her application.  In her affirmation she said that she did not receive the notice of hearing and she did not understand the judgment.

5.  However, the applicant had not identified the reasons in what respect Deputy Judge J. Lam had made any mistake or committed any error in making his decision refusing leave to her to apply for the judicial review.  She said that up till then, she still did not understand the judgment.  She agreed that she should get to understand the judgment before she appealed.

Discussion

6.  In Re: Rana Jaswant [2019] HKCA 102, CAMP 160/2018, 6 March 2019, the Court of Appeal held that this Court has the jurisdiction to deal with this application under Order 59, rule 15 of RHC.  See paragraph 8.1.

7.  In the above judgment, the Court of Appeal also held that to consider whether time extension should be granted, the court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  See paragraph 8.6.

8.  In the circumstances, even if she had filed her appeal within time, there is no prospect that her appeal will succeed.

9.  In the circumstances, I dismiss her application.