RE SAMANTELA JENNIFER ABANO

HCAL 1993/2018

[2021] HKCFI 2821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1993 OF 2018

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D E C I S I O N

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1.  On 16 June 2021 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in dismissing her appeal/petition regarding 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 23 July 2021 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 30 June 2021, and hence she was 23 days 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 The 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 23 days must be considered as significant, for which she explained in her affidavit that she received the decision late, and at the hearing of her summons she added that in her rented residence it was her landlord who distributed the arriving mails to the tenants, and by the time she received the decision from her landlord on or about 19 July 2021, she was already out of time with her intended appeal.

5.  The court record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, I therefore fail to see why her landlord would have kept her mail for more than a month before giving it to her, and in the absence of any further details or documentary evidence to corroborate her bare assertions, I am not satisfied that the Applicant has provided a good reason for her 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 her affidavit, and at the hearing of her summons she just stated that she does not wish to go back to her home country as her life is still in danger there. 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.