FITRI WASTIKA ARIFIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1150/2022

[2023] HKCFI 1645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1150 OF 2022

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BETWEEN

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D E C I S I O N

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1.  On 21 April 2023 Deputy High Court Judge To refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal/petition regarding her non-refoulement claim upon finding that she had failed to put forward any grounds for her intended challenge, that there was no error of law or procedural unfairness in her 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 11 May 2023 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 the High Court, Cap 4A expired on 5 May 2023, and hence she was 6 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 6 days may not be considered as significant, for which she failed to provide any explanation in her summons or affirmation in which she just stated that she is unrepresented and with no means to instruct a private lawyer but clearly appeared to have legal assistance with her present application, and that she also failed to attend the scheduled hearing of her summons without any explanation.

5.  The court record shows that the decision was sent on the same day of 21 April 2023 to the Applicant’s last reported address which is the same as stated in her present application without being returned through undelivered post, but given the relative insignificance of her delay, I propose to focus on the prospect of her intended appeal.

6.  The Applicant however 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 affirmation or summons in which she asserted that the grounds of her proposed appeal were set out in the annexed draft Notice of Appeal but in fact there was none so annexed, while as noted above that she also failed to attend the hearing of her summons without any explanation. 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. I accordingly refuse her application for extension of time to appeal, and dismiss her summons.