RE TRI WIDAYATI

HCAL 213/2021

[2021] HKCFI 1829

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 213 OF 2021

_____________

_____________

_____________

D E C I S I O N

_____________

1.  On 25 March 2021 I refused to extend time to the applicant’s seriously late application for leave to apply for judicial review of the decisions of the Director of Immigration (“Director”) or of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim upon finding that there was no good reason for her serious delay, 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 19 April 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 8 April 2021, and hence she was 11 days 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 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 11 days may not be regarded as substantial, for which she explained in her supporting affirmation and at the hearing of her summons that as she was legally unrepresented and was not aware of the rule for the filing of appeal, and as she had had to seek help in preparing the documents for her appeal, she was therefore slightly out of time with her intended appeal.

5.  Ignorance of the rule of course cannot be accepted as an excuse for its non-compliance, while the court record shows that the decision was sent to the applicant’s last reported address which is the same stated in her present application without being returned through undelivered post, I am not satisfied that she has provided a good reason for her albeit insubstantial delay.      

6.  More importantly, nor did she put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in her summons, and in her supporting affirmation she merely stated that the decision “had been reached unfairly without giving [her] an opportunity to explain” but without providing any details or particulars of what it was that she had wanted to explain, while the record shows that she had never requested any oral hearing for her leave application in the first place, and at the hearing she just repeated her claim as before that she cannot return to her home country as her life would still be in danger there. 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, 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.