RE CLAVERO JOY CABALLERO

HCAL 197/2018

[2019] HKCFI 2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 197 OF 2018

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D E C I S I O N

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1.  On 4 April 2019 Deputy High Court Judge Josiah Lam dismissed the applicant’s application for leave to apply for judicial review ofthe decision of the Torture Claims Appeal Board (“the Board”) in dismissingher appeal regarding her non-refoulement claim upon finding that it was her second such application after her first one had been refused by the Court on 4 August 2017 under HCAL 215/2017, and that it was therefore an abuse of process for the applicant to try to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board.

2.  The applicant now by a summons dated 24 June 2019 seeks leave to appeal against that decision out of time, 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 ended on 18 April 2019, and hence she was late by more than two months with her intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal 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 more than two months cannot be said to be insignificant or insubstantial, for which she explained in her supporting affirmation that she did not receive the letter from the Court until 18 June 2019 which was then well outside the 14-days period, but she did not provide any further supporting evidence such as a copy of the letter showing the date of the postage that it was indeed late, as the court record shows that the decision was in fact sent on the same date of 4 April 2019 to her last reported address, and as she also failed to attend the hearing of her summons without any explanation, I am not satisfied that she has provided any valid explanation or good reason for her delay. 

5.  More importantly, nor did she in her summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in that decision, or why it may be argued that the decision was unfair or unreasonable.  In fact, given the reasons as noted above for the dismissal of her application, I do not find any prospect of success at all in her intended appeal. 

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