RE KUSTANTI

HCAL 1861/2018

[2020] HKCFI 2311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1861 OF 2018  

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D E C I S I O N

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1.  On 7 August 2020 Deputy High Court Judge Lung refused to extend time for the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing her appeal regarding her non-refoulement claim upon finding that there was no good reason for her delay with her intended application, that 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 of Immigration 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 27 August 2020 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 High Court, Cap 4A ended on 21 August 2020, and hence she was late by 6 days 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 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 6 days may not be considered as significant, for which she explained in her affirmation that she did not receive the decision in the mail until after the 14-day period for her to file her appeal.  Given the impact of the current Covid-19 pandemic on the general postal service during the material time when it was in operation only 3 days per week, and also on the High Court Registry with reduced operation hours and limited people flow, I accept the Applicant’s explanation for her insignificant delay, and agree that there are justifications to extend time for her to file her appeal.      

5.  In the premises, and in view of the current public health situation, I propose to deal with the matter on paper, and accordingly grant the Applicant an extension of time to file her appeal within 14 days of this order.