RE ISLAM ASIA

HCAL 848/2018

[2021] HKCFI 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 848 OF 2018

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D E C I S I O N

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1.  On 1 September 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal regarding her non-refoulement claim upon finding none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or irrationality or procedural unfairness in the process before the Director of Immigration 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 21 September 2020 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 High Court, Cap 4A expired on 15 September 2020, and hence she was late by 6 days 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 6 days may not be considered as significant, for which she explained at the hearing of her summons that at that time she had just moved to a new address but without informing the court of her new address, and by the time she was able to retrieve the letter containing the decision sent to her former address, she was already out of time with her intended appeal.

5.  In the absence of any further details or documentary evidence from the Applicant in support of her assertion, and given the fact that it was her duty to inform the authorities of any change of her residential or correspondence address as soon as possible, I am not satisfied that she has provided a good or valid reason for her delay, but given its relatively insignificance, I propose to focus on the merits, if any, of her intended appeal.      

6.  However, the Applicant did not either in her summons or supporting affirmation put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, and at the hearing she merely repeated her claim that her problem has still not been solved and hence she cannot go back to her home country yet. 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, 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.