RE ANITA SUSILOWATI

HCAL 605/2017

[2019] HKCFI 1673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 605 OF 2017

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D E C I S I O N

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1.  On 27 June 2018 Deputy High Court Judge Woodcock refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal/petition regarding her non-refoulement claim upon finding none of the grounds put forward by her as reasonably arguable, that there was no error of law or procedural unfairness in the process before the Board or in its decision, and that there was no realistic prospect of success in her intended application.

2.  The applicant now by a summons issued on 24 May 2019 seeks leave to appeal against that decision out of time, as the 14-day period for her to lodge her appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 11 July 2018, and hence she was late by more than 10 months 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 will have regard to (i) the length of the delay; (ii) the reasons 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 10 months must be regarded as substantial or excessive, for which she explained at the hearing of her summons that she did not do anything about the Court’s decision at that time as she was waiting for the result of her application for dependent visa until May 2019 when she was warned by the Immigration Department that she may soon be deported from Hong Kong as a result of the refusal by the Court of her leave application for judicial review, and it was only then when she decided to lodge her appeal out of time.  In the circumstances I do not accept that she has provided any good reason for her significant delay.

5.  More importantly, she did not provide either in her summons or her supporting affirmation any draft or proposed ground for her appeal, or any particulars as to any error in the decision or why it was unreasonable or unfair, and despite invitation by the Court at the hearing, she was unable to doso, admitting that she just wanted to use the proceedings to prolong her stay in Hong Kong pending the outcome of her application for dependent visa. As such I do not see any reasonable prospect of success in her intended appeal. 

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