RE DAS BINDHA

HCAL 1596/2018

[2021] HKCFI 867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1596 OF 2018  

_____________

_____________

_____________

D E C I S I O N

_____________

1.  The applicant filed a summons on 23 January 2020 for extension of time to appeal against the Court’s decision as described below. This file was mislaid and therefore is late for its process.

2.  The applicant is an Indian national. She arrived in Hong Kong in 1996 as a domestic helper. Her employment contract was terminated. She overstayed and surrendered to the Immigration Department on 23 June 2014. She lodged her non-refoulement claim to the Immigration Department on 23 June 2014.

3.  By Notice of Decision dated 15 July 2016 (“the Director’s Decision”), the Director rejected her claim and she appealed to the Torture Claims Appeal Board (the “Board”). The Board considered her appeal and by its Decision dated 19 May 2017 (“the Board’s Decision”), it refused her appeal and affirmed the Director’s Decision.

4.  On 10 August 2018, the applicant applied to the High Court for leave to apply for judicial review of the Board’s Decision. However, her application was out of time.

5.  Having considered the merits of the case, by Form Call-1 dated 20 January 2020 (“the Court’s decision”), the Court found that there was no merit in her proposed judicial review. The Court declined to extend time for her to file her application and dismissed her application.

6.  In her affirmation in support of this application, the applicant said that she did not agree with the Board’s Decision and wanted the court to re-consider it.

7.  She did not say that she did not receive the Court’s form Call-1. Nor did she state the reasons for her delay in the filing of her appeal.

8.  The Court’s Form Call-1 was sent to the applicant’s last known address. Pursuant to Order 65, rule 5 (2A) of the Rules of the High Court (“RHC”), it is deemed to have served on her two days after the date of the letter in the ordinary course of the post, as it was not returned unserved.

9.  She is out of time for filing her appeal now.

10.  By virtue of Order 32, rule 11A(1)(a) of the RHC, this Court decide to determine this application without an oral hearing.

11.  In Re Adumekwe Rowland Ejike [2019] HKCA 702 28 June 2019, the Court of Appeal held that the Court has to consider the prospect of the intended appeal in order to determine whether time should be extended.

12.  The Board had given its reasons for its decision. It said that it did not accept the facts in support of the applicant’s application. The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 §14 held that the Board is the primary decision maker of the facts of the case.

13.  There is no evidence to show that the Board erred in its finding of the facts or the application of the law to her case.

14.  She was unable to say in what respect the Court’s decision was wrong in her affirmation. Those reasons in paragraph 6 above will not assist her.

15.  Since there is no reasonable prosper of success in her intended appeal, I decline to extend time for her intended appeal.

16.  I dismiss her application.