RE CUCUN FATIMAH

HCAL 411/2018

[2019] HKCFI 1471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 411 OF 2018

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D E C I S I O N

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1.  On 8 March 2019 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing her non-refoulement claim on her BOR 2 risk and subsequent appeal upon finding none of the grounds put forward by her as reasonably arguable or with any prospect of success in her intended application.

2.  The applicant now by a summons issued on 16 April 2019 seeks leave to appeal against that decision out of time, as the 14-day period for her to lodge her appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 22 March 2019, and hence she was late by about 3 ½ weeks 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 will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

4.  In the applicant’s case a delay of 3 ½ weeks cannot be said to be insignificant.  In her supporting affirmation of the same date she explained that because she just gave birth to a child six months ago and had to take care of the new born baby as a single parent without help and hence she was late with her intended appeal.  At the hearing the applicant clarified that it was in 2018 that she gave birth to her child but without producing any documentary evidence or any particulars of the father of the child or why he was not assisting in the child care.  As such and given the fact that even on her own case that the child was already born six months before the period within which she was required to file her notice of appeal expired, I do not accept that she has provided any good reason for her delay.

5.  As for the prospect of her intended appeal, the applicant put forward various grounds of appeal in her affirmation but in which she merely repeated the same complaints against the Director and the Board in rejecting/dismissing her claim under BOR 2 risk as raised in her earlier application for leave to apply for judicial review instead of any proper ground of appeal against my decision in refusing her leave application, nor did she at the hearing make any attempt to identify any error in that decision which she now seeks to appeal. As such and in the absence of any proper grounds proposed by the applicant, I am unable to see any prospect of success in her intended appeal.

6.  In the premises it would be futile to extend time for what appears to me a hopeless appeal.  Accordingly I refuse her application for leave to appeal out of time, and dismiss her summons.