RE DWI DYAH LISTYANINGSIH

HCAL 1133/2018

[2021] HKCFI 3096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1133 OF 2018

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D E C I S I O N

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1.  The Applicant, by summons dated 28 July 2021 applies for extension of time to appeal against the decision of Deputy High Court Judge C. P. Pang (“the Court”) given on 29 January 2021 refusing to grant leave to the Applicant for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal from the decision of the Director of Immigration regarding her non-refoulement claim.

2.  The 14 day period for the Applicant to file her appeal against the decision of the Court ended on 12 February 2021 and hence she was well over 5 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, a 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.

4.  In the Applicant’s case, this delay of well over 5 months is not insignificant.  The Applicant explained in her summons and affirmation that she did not receive the letter from the High Court (presumably meaning the letter in which the decision of the Court and order was sent) and it was only until she searched the court file on 26 July 2021 that she came to know of the decision of the Court which was given on 29 January 2021.

5.  The court record shows that the decision of the Court was sent on the same day that it was made to the Applicant to the last reported address of the Applicant without it being returned to the court as undelivered post.  However, in her present summons, the Applicant gives a different address to the one to which the decision of the Court and order was sent.

6.  As for the prospect of the intended appeal, the Applicant has stated in her summons that the Adjudicator failed to make sufficient enquiry before finalizing the determination without giving any particulars or elaboration as to what enquiry the Adjudicator ought to have made. 

7.  In her affirmation, the Applicant has reiterated that her life is in danger in her home country but this is a finding of fact which the Board has rejected and which is within the Board’s province as a fact finding tribunal to make.

8.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held :

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.  This being an application to extend time for appealing against the decision of the Court, it is for the Applicant to show that there is a reasonably arguable appeal.  This she has not done.

10.  In the premises, and for the reasons given, it would be futile to extend time for what would appear to be a hopeless appeal.  Accordingly, I refuse the Applicant’s application for extension of time to appeal and dismiss the summons.