RE ARIS AYUK WAHYUNINGTYAS

HCAL 23/2018

[2019] HKCFI 2907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 23 OF 2018

________________________

________________________

________________________

D E C I S I O N

________________________

1.  On 17 June 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing her non-refoulement claim upon finding 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 8 October 2019 seeks leave to appeal against that decision out of time, 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 ended on 1 July 2019, and hence she was late by more than two months 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 two months cannot be regarded as insignificant, for which she simply claimed in her supporting affirmation that she did not receive the decision within reasonable period of time, but without providing any further details or particulars to substantiate her claim such as to when or how did she eventually find out about the Decision which she now proposes to appeal, and as she also failed to appear at the hearing of her summons for which she later merely claimed to have not received any notice of hearing from the court but without providing any further details or documentary evidence.  As such I am not satisfied that she has in the circumstances provided any good or valid reason for her delay.  

5.  More importantly, nor did she in her summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable.  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. 

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