RE AKTER LABONI

HCAL 365/2019

[2022] HKCFI 3189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 365 OF 2019

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D E C I S I O N

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1.  On 17 May 2022 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal/petition regarding her non-refoulement claim upon finding that none of her proposed grounds were 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 25 July 2022 seeks extension of time to appeal against that decision, as the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A ended on 31 May 2022, and hence she was almost 2 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 an 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 almost 2 months must be considered as very substantial and inordinate, for which she explained at the hearing of her summons that at that time she just moved to a new address but without informing the court, and when she later retrieved the decision sent to her former address, she was then already out of time with her intended appeal.

5.  The court record shows that the decision was sent on the same day to the applicant’s last reported address which is in fact the same as stated in her present application without being returned through undelivered post, and if she had indeed changed her address at that time but without informing the court of her new address, she has only herself to blame for the delay in getting the decision, and in the circumstances I am not satisfied that the applicant has any good or valid reason for her serious delay.

6.  As for the prospect of her intended appeal, the applicant did not put forth any proper or valid draft or proposed grounds of appeal, but in her supporting affirmation she stated as follows:

“I am the applicant herein. The decision made by the Deputy High Court judge Bruno Chan has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive any correspondence from the Court regarding the Judicial Review be refused. I humbly request the Court to allow my appeal out of time and give a chance to explain.”

7.  While it is true that her application was dealt with by this court on paper without any oral hearing, the fact is that the applicant never requested for one, and at the hearing of her summons she did not make any attempt to clarify her case or the situation in her home country other than just repeating her claim as before that she cannot return to her home country as her life would still be in danger there. 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 he intended appeal.

8.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse her application for extension of time to appeal, and dismiss her summons.