RE SALBIYAH

HCAL 748/2018

[2021] HKCFI 890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 748 OF 2018 

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D E C I S I O N

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1.  On 7 September 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 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 17 November 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 21 September 2020, and hence she was late by almost 2 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 2 months must be considered as substantial, for which she explained in the written submission attached to her supporting affirmation that she never received the decision in the mail until later when she was advised by her friend to check with the court that she was told of the decision, but by then she was already out of time with her intended appeal.

5.  However, at the hearing of her summons she changed her explanation in that she lost her copy of the decision during her move to a new residence around that time, and it was later when she reported to the Immigration Department when she was reminded by her immigration officer to file her appeal if she wants to challenge the decision, but by then she was already out of time with her intended appeal.

6.  The court record shows that the decision was sent on the same day to the applicant’s last reported address but has subsequently been returned through undelivered post, hence it seems that she might indeed have changed her address at that time, but without any further details such as the date of her move to a new address, and as it was her duty to so inform the authorities as soon as practicable, she should bear the consequences of her failure to do so and the consequence of not receiving the decision on time. In the circumstances I am not satisfied that she has provided any good or valid reason for her substantial delay.     

7.  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 her life would still 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.      

8.  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.