RE SUMINEM

HCAL 15/2018

[2020] HKCFI 2974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 15 OF 2018

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D E C I S I O N

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1.  On 18 January 2019 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing her non-refoulement claim upon finding that there was no good reason for her significant delay of more than 6 weeks late with her application, 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 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 7 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 ended on 1 February 2019, and hence she was late by more than 19 months 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 more than 19 months must be considered as extremely substantial and excessive, for which she explained at the hearing of her summons that she never received the decision in the mail, and it was only until recently that she was informed by her immigration officer of the decision, but by then she was already way out of time with her intended appeal.

5.  She was however unable to provide any further or documentary evidence in support of her assertion, and as the court record shows that the decision was sent on the same day to her last reported address without ever being returned through undelivered post, I am not satisfied that she has provided any good reason for her such serious delay.

6.  More importantly, nor did she 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 either in her summons or affirmation, and at the hearing of her summons she merely repeated her claim that she cannot go back to her home country as her problem there still has not been resolved. 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.