SUSANTI RASMIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 180/2019

[2024] HKCFI 3036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 180 OF 2019

_____________

_____________

_____________

D E C I S I O N

_____________

1.  On 23 June 2023 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding 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 of Immigration (“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 6 September 2024 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file her appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 7 July 2023, and hence she was more than one year late 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 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 one years must be considered as extremely substantial and inordinate, for which she explained at the hearing of her summons that she was not aware of the procedural requirements for the filing of appeal, and that she might also have forgotten about it until recently, but by then she was already out of time with her intended appeal.

5.  The court record shows that the decision was sent on the same day of 23 June 2023 to the Applicant’s then reported address but which was subsequently returned as undelivered post, and upon enquiries with the Immigration Department which confirmed that it was her latest reported address, the decision was re-sent to the Applicant on 8 January 2024 at the same address but was again retuned through undelivered post, but somehow the Applicant became aware of the decision and made her present application for extension of time to appeal, and at the hearing she confirmed that she had in fact moved to a different address but without informing the authorities which was her duty but which she failed to do so, and for which she has only herself to blame for the delay so caused, while ignorance of the procedural requirements can never be accepted as a justification for their non-compliance. In the circumstances, I am not satisfied that the Applicant has any good or valid reason for her such serious delay.

6.  More importantly, the Applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in her summons or in her affirmation, nor was she able to do so at the hearing of her summons. 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, and 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.