RE LEONCIO JULIE MADRIAGA

HCAL 1941/2018

[2021] HKCFI 2841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1941 OF 2018

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D E C I S I O N

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1.  On 23 December 2020 Deputy High Court Judge C P Pang refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“Director”) or 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 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 26 January 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 6 January 2021, and hence she was about 3 weeks 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 3 weeks may be considered as significant or substantial, for which she just stated in her supporting affirmation that she received the decision late but without any further or other details or particulars.

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, and in the absence of any further details to corroborate her bare assertions such as when exactly did she receive the decision or any documentary evidence such as the envelope which contained the decision to show the actual postmark, and as she also failed to attend the hearing of her summons without any explanation, I am not satisfied that the Applicant has provided a good reason for her delay.

6.  More importantly, 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 her affirmation, and as noted above nor did she attend the hearing of her summons to do so. 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.