RE KHOMARIYAH BT SURYAT TUKIJAN

HCAL 154/2018

[2021] HKCFI 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 154 OF 2018

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D E C I S I O N

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1.  On 16 June 2020 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 (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding no good reason for her serious delay, that no proper or valid ground had been put forward by the applicant 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 5 October 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 30 June 2020, and hence she was late by more than 3 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 3 months must be considered as substantial or excessive, for which she explained through her Pakistani husband, as she claimed not to know anything about her case and that everything was prepared and processed by her husband for her, that she never received the decision in the mail, and that it was later when she reported to the Immigration Department on her recognizance when she was informed of the decision, but by then she was already out of time with her intended appeal.

5.  The court record however shows that the decision was sent on the same day to the applicant’s last reported address as the same stated in her present application without being returned through undelivered post, and in the absence of any corroborating evidence for her bare assertion, I am not satisfied that the applicant has provided any good reason for her 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, and in her supporting affirmation she merely repeated her claim and put forth various grounds or complains against the Director or the Board which appeared to have been copied from some pro former statement commonly used in this type of applications but which are wholly irrelevant to her own case, and in any event should have been raised in her leave application and too late for the purpose of her present application now before me, while at the hearing of her summons she merely repeated her claim that her life would be in danger in her home country. 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.  I should note that the applicant had also by a letter dated 23 October 2020 requested for leave to include her minor daughter as the 2^nd Applicant in her present application but whom she did not include in her Form 86 for leave to apply for judicial review. While I accepted that in both her non-refoulement claims before the Director and the Board, she did include her minor daughter as the second applicant based on her own claim, but the applicant somehow did not do so in her Form 86 or supporting affirmation for judicial review, and at the hearing she blamed the omission on her Pakistani husband whom she claimed was responsible for preparing all her documents. Since the decision had only dealt with her own claim and not her daughter’s, it is procedurally not possible or necessary to include her daughter in her present application, and so I refused her request but with an advice to file another Form 86 separately for her daughter if she so wishes, albeit that she would be way out of time by now.

8.  In the premises, as regard the applicant’s present application for leave to file her own notice of appeal out of time, for the reasons given 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.