ERVINA SUSANTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 979/2022

[2023] HKCFI 727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 979 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 6 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 11 days 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 11 days may not be considered as significant, for which she explained at the hearing that she was at the material time being detained at the Castle Peak Bay Immigration Centre (“CIC”) until sometime in October 2022 when she was released, but that by the time she received the decision in the mail posted to her new residential address in early December 2022, she was already out of time with her intended appeal.

5.  The court record shows that the decision was first sent on the same day of 11 November 2022 to the Applicant’s then reported address at CIC but was returned through undelivered post and marked that she had already been released, and upon enquiring with the Immigration Department for her new address, the decision was re-sent to the Applicant on 28 November 2022 which appears to correlate with her assertions, but as it was her duty as a non-refoulement claimant to keep the authorities including the Court updated of any change to her residential or correspondence address, but as the record shows that she never informed the Court of her latest address upon her release from CIC, she has only herself to blame for the delay in receiving the decision so caused, but given the circumstances and the relatively insignificance of her delay, I propose to focus on the prospect of her intended appeal.

6.  However, the Applicant 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 could only repeat her claim as before that her life is still in danger in her home country that she does not want to return to Indonesia. 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.

7.  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.