PABILING AILENE CAPILAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1688/2023

[2024] HKCFI 133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1688 OF 2023

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D E C I S I O N

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1.  On 16 November 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 1 December 2023 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 30 November 2023, and hence she was 1 day 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 1 day cannot on any view be considered as significant, for which she explained at the hearing of her summons that she was then suffering from some stomach ache that caused the slight delay.

5.  The court record shows that the decision was sent on the same day of 16 November 2023 to the Applicant’s last reported address without being returned through undelivered post, and while the Applicant failed to provide any further details or documentary evidence to corroborate her alleged medical issue, but given the insignificance of the delay, I propose to focus on the prospect of her intended appeal.

6.  However, the Applicant 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 other than just stating that she wants to stay in Hong Kong. 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.