RE KHATUN MST ASMA

HCAL 89/2018

[2019] HKCFI 2494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 89 OF 2018

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DECISION

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1.  On 19 July 2019 I struck out and dismissed the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her non-‌refoulement claim upon finding that it was her second such application after she failed to obtain leave from the Court in her previous application under HCAL 357/2017, and that it was an abuse of process on her part to try to re-litigate her case by bringing a second judicial review of the same decision of the Board.

2.  The Applicant now by a summons issued on 3 September 2019 seeks leave to appeal against that decision out of time, as the 14-day period for her to file her notice of appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 2 September 2019 after discounting the month of August 2019 as Summer Vacation, and hence she was late by one day 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 one day cannot, on any view,be regarded as significant, but for the reasons as noted in paragraph 1 above, there is simply no merit or prospect of success whatsoever in her intended appeal in the absence of any error in the decision being clearly and properly identified by the Applicant, as she in her supporting affirmation only referred to her criticisms of the decisions of the Director of Immigration or of the Board when all of which had already been rejected as not reasonably arguable by the Court in her previous application and of which she never brought any appeal. As such and in the premises I simply do not see any prospect of success in her intended appeal.

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