DUKPA AMRITA TSHERING v. TORTURE CLAIMS APPEAL BOARD

HCAL 855/2022

[2023] HKCFI 799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 855 OF 2022

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BETWEEN

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D E C I S I O N

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1.  On 11 November 2022 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal/petition regarding her non-refoulement claim upon finding that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her process before the Director of Immigration (“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 12 December 2022 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 the High Court, Cap 4A expired on 25 November 2022, and hence she was more than 2 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 success 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 Gurang Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case, a delay of more than 2 weeks must be considered as significant, for which she explained in her affirmation that as she was unrepresented and had had to seek help and advice with her appeal, but by the time she was able to do so, she was already out of time with her intended appeal, and at the hearing of her summons she added that she only received the decision in the mail in early December 2022 when by then she was already out of time to appeal.

5.  The court record shows that the decision was first sent on the same day to the applicant at the Castle Peak Bay Immigration Centre (“CIC”) where she had been detained but which was subsequently returned and marked that she had already been released from CIC. Upon enquiry with the Immigration Department which confirmed that the applicant was released from CIC sometimes in September 2022, and with her new resident address provided by the Immigration Department, the decision was re-sent on 30 November 2022 to the applicant at her new address, which does go to support her claim that she only received the decision in early December 2022.

6.  However, at the hearing of her summons the applicant admitted that upon her release from CIC, she only informed the Immigration Department of her new address but not the court, and for which she conceded that she should have as it was her duty to do so and as she was then still waiting for the decision from the court regarding her leave application. In the circumstances and given that it was her duty to keep the court updated of any change to her address, and for which she had had some 2 months to do so after her release from CIC in September 2022 well before the Court was to deliver its decision, I am of the view that the applicant has only herself to blame for the resultant delay so caused to her intended appeal.

7.  More significantly, the applicant also 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 at the hearing of her summons she just stated that she does not want to return to her home country. 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.

8.  In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse her application for extension of time to appeal, and dismiss her summons.