RE HALDER REKHA RANI

HCAL 1080/2017

[2019] HKCFI 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1080 OF 2017

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D E C I S I O N

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1.  On 21 September 2018 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal/petition regarding her non-refoulement claim upon finding none of the grounds put forward by her as reasonably arguable or with any prospect of success in her intended application.

2.  The applicant now by a summons issued on 11 March 2019 seeks leave to appeal against that decision out of time, as the 14-day period for her to lodge her appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 5 October 2018, and hence she was late by more than five months.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

4.  In the applicant’s case a delay of more than five months must be regarded as substantial and excessive, for which she explained in her supporting affirmation of the same date that she was unable to open the mailbox of her rented residence to receive the Court’s decision because her landlord had taken the key with him when he travelled to China, and hence she was not aware of the decision until about 12 February 2019 when she was informed by the Duty Lawyer Service (“DLS”).

5.  However, at the hearing of her summons when she was asked to elaborate further the explanation in her affirmation for the delay, she appeared confused and eventually admitted that she had in fact no problem accessing her mailbox, and that her affirmation was prepared by her friend without reading back to her and hence that part in her affirmation about her landlord taking the key to the mailbox with him to China is not correct, and that the correct version of her explanation was that after receiving the Court’s decision, she did not know what to do and it was not until later in February 2019 when she was informed by DLS that she could appeal, but as she was then out of time and so she got her friend to prepare her summons for leave to appeal out of time, of which I do not accept that she has provided any good reason for her delay.

6.  Nor did she provide any draft or proposed ground for her appeal,or any particulars as to any error in the decision or why it was unreasonable or unfair, for which she again blamed it on her friend who prepared the documents for her, and when she was invited to give her grounds for her appeal in court, she was unable to do so, claiming that there was no error in the decision but as it was still dangerous for her to go home, she just wantedto remain in Hong Kong.  As such I am unable to see any prospect of success in her intended appeal.

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