BETY SUSANTI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 97/2019

[2023] HKCFI 1412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 97 OF 2019

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BETWEEN

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D E C I S I O N

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1.  On 15 December 2021 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 31 March 2023 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 29 December 2021, and hence she was some 15 months 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 15 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her summons that she never received the decision in the mail as she had moved her residence several times during 2021 and 2022, and was only informed of the decision by an immigration officer when she recently reported on her recognizance.

5.  The court record shows that the decision was sent on the same day of 15 December 2021 to the applicant’s then reported address without being returned through undelivered post, and if she did at that time change her address, of which she admitted at the hearing of never informing the court of her new address, but which was clearly her duty to do so, the applicant has only herself to blame for the delay so caused to her intended appeal, and as such I do not accept that she has any good or valid reason for her such serious delay.

6.  More importantly, 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, nor was she able to do so at the hearing of her summons, 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 either.

7.  I should note that the applicant also applied by affirmation and at the hearing to add her daughter to her summons, but as she never included her daughter in her leave application for judicial review in the first place, nor did she attend the subsequent hearing of her application so as to do so, and hence the court had never dealt with any leave application for judicial review by her daughter in that decision, and accordingly the applicant was advised at the hearing that she would have to make a separate albeit late application for her daughter for leave to apply for judicial review of the Board’s decision regarding her daughter’s non-refoulement claim, and as her daughter is a minor, the applicant was also advised to seek legal representation for her daughter or to apply for Legal Aid so as to comply with Order 80 Rule 2 of the Rules of the High Court for the making of her daughter’s application.

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